Government of the Virgin Islands v. Martinez

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________

No. 08-2694

_________________

GOVERNMENT OF THE VIRGIN ISLANDS

v.

KWANZA MARTINEZ,

Appellant

_________________

On Appeal from the District Court

of the Virgin Islands, Appellate Division

(Crim. No. 1:04-cr-00148-1)

Judges: Hon. Curtis V. Gomez, Hon. Raymond L. Finch,

and Hon. Audrey L. Thomas

Submitted Under Third Circuit LAR 34.1(a)

May 4, 2010

_________________

Before: SMITH, CHAGARES, and JORDAN, Circuit Judges.

(Filed: September 8, 2010)

Martial A Webster, Sr., Esq.

116 Queen Cross Street

Frederiksted, St. Croix, V.I. 00851

Counsel for Appellant

Tiffany V. Robinson, Esq.

Office of the Attorney General of the Virgin Islands

34-38 Kronprindsens Gade, GERS Complex, 2nd Floor

Charlotte Amalie, St. Thomas, VI 00802

Counsel for Appellee

__________________

OPINION

__________________

CHAGARES, Circuit Judge.

Kwanza Martinez was convicted in the Territorial Court of

the Virgin Islands of kidnapping for rape, and he was sentenced to

thirty years in prison. The Appellate Division of the District Court

of the Virgin Islands affirmed the conviction. Three months later,

Martinez filed a notice of appeal in this Court. Concluding that the

Government has forfeited its ability to attack the appeal as untimely

pursuant to Federal Rule of Appellate Procedure 4(b), we exercise

jurisdiction. Because we reject Martinez’s claims on the merits, we

will affirm the order of the Appellate Division.

I.

Taken in the light most favorable to the Government, the

pertinent facts are as follows. On the night of June 16, 2003,

Chenae Harvey, who was then sixteen, left her home in the Harbor

View housing community on the island of St. Croix. In a nearby

parking lot, she bumped into Martinez, her first cousin, who was

then twenty-one. Harvey entered Martinez’s car voluntarily,

expecting that he would drive her to her friend Amanda’s

apartment, also located in Harbor View. Instead, Martinez

unexpectedly passed Amanda’s apartment at a high rate of speed,

and Harvey quickly realized that he did not intend to take her there.

Harvey asked Martinez where he was taking her, but he did not

answer. She twice asked him to take her home, but again he was

unresponsive. When they reached the Princesse area, Harvey

began to cry, and screamed to Martinez that she wanted to go

home. Yet again, he did not respond. Finally, Harvey grabbed the

steering wheel in an attempt to stop the car. At that point, Martinez

ordered Harvey not to grab the wheel, and said that he had a gun in

the car and did not want to be stopped by the police. Martinez then

removed a firearm from the glove compartment and placed it in his

lap. The gun remained present for the duration of the encounter.

2

Martinez’s excessive speed caused Harvey to be “afraid [for

her] life.” Joint Appendix (“JA”) 152. He continued his frenetic

pace until he reached a desolate area past the Salt River, 10.8 miles

from Harbor View. Martinez drove up a steep hill known as “The

Beast,” turned the car around at a dead end so that it faced down

the hill, and turned off the lights. With the gun still in his lap,

Martinez then demanded that Harvey have sex with him. She

declined, stating, “No, I don’t want to have sex with you because

you is my cousin.” Id. When she did not acquiesce, Martinez

ordered Harvey out of the car and sped away.

Five minutes later, Martinez returned, at which time Harvey

opened the rear passenger door and reentered the car. It is

undisputed that at some point thereafter, Martinez and Harvey

engaged in sexual intercourse. The nature of the sexual encounter,

however, is vigorously disputed: Martinez claimed that it was

consensual, and Harvey alleged that it was not. In any event,

whatever happened in fact is not critical to resolution of this

appeal.

The record is not entirely clear how long the episode lasted,

but it appears to have taken place over a period of about an hour.

Two days later, Harvey told her mother, Faye Martinez (who is the

defendant’s aunt), about the incident, and her mother then took her

to the hospital. Harvey gave a statement to police officers at the

hospital, after which the officers recovered her undergarments.

Analysis on the clothing tested positive for DNA consistent with

Martinez’s.

Martinez was arrested on July 9, 2003, and was charged in

a six-count criminal information with aggravated rape in the first

degree (in violation of V.I. Code Ann. tit. 14, § 1700); aggravated

rape in the second degree (in violation of V.I. Code Ann. tit. 14, §

1700a); kidnapping for rape (in violation of V.I. Code Ann. tit. 14,

§ 1052(b)); two counts of unlawful sexual contact in the first

degree (in violation of V.I. Code Ann. tit. 14, § 1708); and

possession of a deadly weapon during a crime of violence (in

violation of V.I. Code Ann. tit. 14, § 2251(a)). Martinez did not

dispute that he had sexual intercourse with Harvey, but claimed

that the encounter had been entirely consensual. After a three-day

3

trial, the jury convicted him of kidnapping for rape (Count Three),

but acquitted him of the other charges.1 The trial court sentenced

him to thirty years in prison. The Appellate Division affirmed the

conviction, and this appeal followed.

II.

We first consider our jurisdiction. The Appellate Division

exercised appellate jurisdiction under 48 U.S.C. § 1613a(a), and

entered its order affirming the conviction on February 27, 2008.

On May 20, 2008, the Appellate Division entered on its docket a

handwritten letter from Martinez, dated May 15, 2008, in which he

averred that he had only recently learned that his conviction had

been affirmed. He explained that his attorney had been disbarred

and had not forwarded him a copy of the Appellate Division’s

opinion and order. The court appointed new counsel, who filed a

notice of appeal on June 10, 2008, 104 days after entry of the

Appellate Division’s final order.

On June 17, 2008, the Clerk of this Court issued an order (1)

advising the parties that we may lack appellate jurisdiction, and (2)

directing them to file responses addressing the issue. The

Government did not file a response (and has never addressed the

jurisdictional issue in this Court); Martinez filed a response

through counsel. A motions panel thereafter referred the issue to

this merits panel to consider whether the time limitation in Federal

Rule of Appellate Procedure 4(b) is a jurisdictional requirement, or

a claim-processing rule subject to forfeiture.

“The Federal Rules of Appellate Procedure govern appeals

to our [C]ourt from the District Court of the Virgin Islands[,

Appellate Division]. Therefore, the time limits for the filing of a

notice of appeal in a criminal case are those set out in Fed. R. App.

P. 4(b).” Gov’t of the V.I. v. Charleswell, 24 F.3d 571, 575 (3d

Cir. 1994) (citation and footnote omitted). Rule 4(b) required

Martinez to file a notice of appeal within ten days of the entry of

1

Before the case was submitted to the jury, the trial court

dismissed the charge of aggravated rape in the second degree.

4

the Appellate Division’s final order.2 It is undisputed that he did

not do so. Our decisions have repeatedly noted that the failure to

file a timely notice of appeal in a criminal case deprives us of

appellate jurisdiction. See, e.g., United States v. Carelock, 459

F.3d 437, 440-43 (3d Cir. 2006); United States v. Kress, 944 F.2d

155, 161 (3d Cir. 1991); United States v. Vastola, 899 F.2d 211,

220 (3d Cir.), vacated on other grounds, 497 U.S. 1001 (1990);

United States v. Grana, 864 F.2d 312, 314 (3d Cir. 1989).

While a panel of our Court is bound by the precedential

decisions of earlier panels, that rule does not apply “when the prior

decision[s] conflict[] with a Supreme Court decision.” United

States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009); see also United

States v. Singletary, 268 F.3d 196, 202 (3d Cir. 2001); Third

Circuit Internal Operating Procedure 9.1. Three recent Supreme

Court decisions compel us to revise our prior jurisdictional view of

Rule 4(b): Kontrick v. Ryan, 540 U.S. 443 (2004); Eberhart v.

United States, 546 U.S. 12 (2005) (per curiam); and Bowles v.

Russell, 551 U.S. 205 (2007). In accordance with the uniform

holdings of our sister courts of appeals following these decisions,3

we now hold that Rule 4(b) is not jurisdictional and is subject to

forfeiture.

In Kontrick, the Supreme Court held that Federal Rule of

Bankruptcy Procedure 4004 – which sets forth a sixty-day window

for a creditor to file a complaint objecting to a debtor’s discharge

– is not jurisdictional. 540 U.S. at 447. The Court explained that

2

Rule 4(b) now prescribes a fourteen-day window to file a

notice of appeal in a criminal case. Fed. R. App. P. 4(b).

3

See, e.g., United States v. Neff, 598 F.3d 320, 323 (7th Cir.

2010); United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009);

United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009);

United States v. Byfield, 522 F.3d 400, 403 n.2 (D.C. Cir. 2008);

United States v. Frias, 521 F.3d 229, 233 (2d Cir.), cert. denied,

129 S. Ct. 289 (2008); United States v. Garduno, 506 F.3d 1287,

1290-91 (10th Cir. 2007); United States v. Martinez, 496 F.3d 387,

388-89 (5th Cir. 2007) (per curiam); United States v. Sadler, 480

F.3d 932, 934 (9th Cir. 2007).

5

the term “jurisdictional” properly applies only to “prescriptions

delineating the classes of cases (subject-matter jurisdiction) and the

persons (personal jurisdiction)” implicating “a court’s adjudicatory

authority.” Id. at 455. With respect to the former, the Court

emphasized, “[o]nly Congress may determine a lower federal

court’s subject-matter jurisdiction.” Id. at 452 (citing U.S. Const.

art. III, § 1).

Though other bankruptcy-related time constraints appear in

the judicial code, the Court noted that the specific statutory

“provision conferring jurisdiction over objections to discharge . .

. contains no timeliness condition.” Id. at 453. Instead, the time

limitation governing objections to discharge is governed solely by

Rule 4004, a court-prescribed rule established for the “practice and

procedure” in bankruptcy actions. Id. The Court recognized that

it and other courts had been “less than meticulous” in

distinguishing between statutory provisions circumscribing a

court’s authority to hear a case and “emphatic time prescriptions in

rules of court.” Id. at 454. Clarifying the distinction, the Court

explained that while “subject-matter jurisdiction cannot be

expanded to account for the parties’ litigation conduct[,] a

claim-processing rule, . . . even if unalterable on a party’s

application, can nonetheless be forfeited if the party asserting the

rule waits too long to raise the point.” Id. Because the debtor there

had not raised the objector’s untimeliness until after the objection

had been litigated on the merits, the Court held that the argument

had been forfeited and that jurisdiction had been properly

exercised.

In Eberhart, the Court, relying on Kontrick, held that

Federal Rule of Criminal Procedure 33 – which at the time gave a

criminal defendant seven days to file a motion for a new trial – is

not jurisdictional. 546 U.S. at 13. Rejecting the notion that court-

prescribed rules by themselves provide the “keys to the kingdom of

subject-matter jurisdiction,” id. at 17, the Court explained that Rule

4004 and Rule 33(a) are “virtually identical provisions.” Id. at 16.

The Court concluded that the latter, like the former, is a rigid

claim-processing rule, but one whose protection is subject to

forfeiture if not properly invoked.

6

Finally, in Bowles, the Supreme Court held that Federal

Rule of Appellate Procedure 4(a)(6) – which governs a district

court’s authority to extend the time to appeal in civil cases – is

jurisdictional. 551 U.S. at 213. Though the Court stated generally

that “time limits for filing a notice of appeal are jurisdictional in

nature,” id. at 206, it repeatedly grounded its holding on “the

jurisdictional significance of the fact that a time limitation is set

forth in a statute.” Id. at 210 (emphasis added); see also id. (stating

that Kontrick, Eberhart, and other cases had not “call[ed] into

question our longstanding treatment of statutory time limits for

taking an appeal as jurisdictional.” (emphasis added)); id. at 211-12

(noting the “jurisdictional distinction between court-promulgated

rules and limits enacted by Congress”); Lizardo v. United States,

__ F.3d __, __, No. 08-2044, 2010 U.S. App. LEXIS 16489, at *9

(3d Cir. Aug. 10, 2010) (“The Bowles Court explained that time

limits that are not based on a statute . . . are not jurisdictional rules,

but claim-processing rules.”).

Because 28 U.S.C. § 2107 prescribes time limits for filing

a civil appeal – and because the constraints imposed by Rule

4(a)(6) are also required by the statute – the Bowles Court

concluded that the time to file a notice of appeal in a civil case and

the statutory provisions governing extensions of that time limit are

jurisdictional. Notably, the Court bolstered its holding by

contrasting Rule 4(a) with its criminal counterpart: “we have

treated the rule-based time limit for criminal cases differently,

stating that it may be waived because the procedural rules adopted

by the Court for the orderly transaction of its business are not

jurisdictional . . . .” 551 U.S. at 212 (quotation marks omitted); see

also Lizardo, __F.3d at __, 2010 U.S. App. LEXIS 16489, at *10

(noting the Bowles Court’s distinction between the rules governing

civil and criminal appeals).

Until 1948, the deadline to file a notice of appeal in both

civil and criminal cases was prescribed by 28 U.S.C. § 2107. See

United States v. Frias, 521 F.3d 229, 233 (2d Cir.), cert. denied,

129 S. Ct. 289 (2008). Since then, however, § 2107 – together with

Rule 4(a) – has governed only the deadline to appeal in civil cases.

Rule 4(b), by contrast, has governed the time to file a notice of

7

appeal in criminal cases since 1968 – absent statutory mandate.4

Because Rule 4(b) is not grounded in statute, therefore, we are not

deprived of appellate jurisdiction if a party fails to invoke the rule

properly upon an untimely notice of appeal.5

We repeat that Rule 4(b)’s deadline is rigid. Upon proper

invocation of the rule when a notice of appeal is filed out of time,

we must dismiss the appeal. In this case, however, the Government

has never invoked Rule 4(b). It did not respond to the Clerk’s

order directing it to advise us on its position, and it did not mention

the issue in its merits brief. Because the Government has clearly

forfeited the untimeliness argument available to it, we exercise

jurisdiction.6 We do so pursuant to 48 U.S.C. § 1613a(c).

4

Federal Rule of Criminal Procedure 33 governed the time

to file a notice of appeal in criminal cases from 1948 to 1968.

5

In United States v. Carelock – decided before Bowles but

after Kontrick and Eberhart – we held that an appellant’s failure to

file a notice of appeal compliant with Rule 3(c) (governing the

contents of a notice of appeal) deprived us of jurisdiction. 459

F.3d at 441-43. By the time a proper notice of appeal had been

filed, Rule 4(b)’s deadline had run. Id. at 443. In a footnote, we

identified the issue that Kontrick and Eberhart raised with respect

to Rule 4(b). Id. at 440 n.6. We noted in dicta that “the language

and commentary of the rules, along with their prior treatment by

the Supreme Court and this Court, strongly support the conclusion

that Rules 3 and 4 govern subject-matter jurisdiction.” Id. But

because the Government had raised a proper objection to the non-

compliant notice of appeal, we did not answer the question at that

time. Id. In light of Bowles and the holdings of our sister circuits,

we believe it is clear that Rule 4(b) can no longer be considered a

jurisdictional limitation. Because it is not before us, we need not

consider the jurisdictional implications of Rule 3(c).

6

It remains an open question whether this Court may invoke

Rule 4(b)’s time limit sua sponte and dismiss an untimely criminal

appeal absent a motion by a party. See Frias, 521 F.3d at 234 n.5

(declining to answer the question). At least one other court of

appeals has answered that question affirmatively, retaining

8

III.

Martinez argues that the evidence is insufficient to sustain

the kidnapping for rape conviction under V.I. Code Ann. tit. 14, §

1052(b). We exercise plenary review over Martinez’s sufficiency

challenge, United States v. Bornman, 559 F.3d 150, 152 (3d Cir.

2009), yet that review is narrow. United States v. Rawlins, 606

F.3d 73, 80 (3d Cir. 2010). We will accept the jury’s verdict if,

viewing the evidence in the light most favorable to the

Government, “‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’”

United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in

Jackson). “[W]e examine the totality of the evidence, both direct

and circumstantial, and must credit all available inferences in favor

of the [G]overnment.” United States v. Sparrow, 371 F.3d 851,

852 (3d Cir. 2004) (quotation marks omitted).

Section 1052(b) of the Virgin Islands Code provides in its

entirety:

Whoever abducts, takes or carries

away any person by force or threat

with the intent to commit rape is guilty

of kidnapping and shall be imprisoned

for not less than 15 years and shall not

be eligible for parole until he has

served at least one-half of [the]

sentence imposed.

discretion to invoke the rule “when judicial resources and

administration are . . . implicated and the delay has . . . been

inordinate.” United States v. Mitchell, 518 F.3d 740, 750 (10th

Cir. 2008); see also id. at 752-55 (Lucero, J., dissenting) (agreeing

that courts of appeals have discretion to dismiss an untimely appeal

when an appellee fails to invoke Rule 4(b), but disagreeing that

such discretion should be so narrowly circumscribed). We leave

this question for another day.

9

V.I. Code Ann. tit. 14, § 1052(b). Section 1052(b) required the

Government to prove beyond a reasonable doubt: (1) that Martinez

abducted, took, or carried away Harvey against her will; (2) that he

did so by force or threat; and (3) that he intended to commit rape

while doing so.7 With respect to the kidnapping component of the

crime, we must consider (1) the duration and distance of

asportation of the victim, and (2) whether the asportation created

a significant danger to the victim independent of that posed by a

separate ongoing offense. Gov’t of the V.I. v. Ventura, 775 F.2d

92, 96-98 (3d Cir. 1985) (modifying four-factor test set forth in

Gov’t of the V.I. v. Berry, 604 F.2d 221, 227 (3d Cir. 1979)).8

7

The Virgin Islands Code specifies several classes of rape.

Aside from the independent offenses of unlawful sexual contact in

the first and second degrees, see V.I. Code Ann. tit. 14, §§ 1708-

09, the Code delineates the crimes of rape in the first, second, and

third degrees, and aggravated rape in the first and second degrees.

See V.I. Code Ann. tit. 14, §§ 1700-03. But § 1052(b) does not

specify which version of rape a defendant must intend to commit

during a kidnapping to violate the statute. We can readily discern

the answer. The statute does not require a defendant to intend to

commit aggravated rape, for it plainly says only “intent to commit

rape.” Conversely, the crimes of rape in the second and third

degrees are statutory-rape prohibitions, in which the crime is

defined based on the respective ages of the perpetrator and the

victim, not on the perpetrator’s intent or the victim’s consent. See

Gov’t of the V.I. v. Richards, 44 V.I. 47, 55 (Terr. Ct. 2001).

Accordingly, we believe it is it clear that § 1052(b) requires the

Government to prove that the defendant intended to commit (at

least) rape in the first degree. Relevant here, such a crime occurs

when a defendant engages in sexual intercourse or sodomy with

another “when the [victim’s] resistance is forcibly overcome.” V.I.

Code Ann. tit. 14, § 1701(2).

8

In Berry, we interpreted § 1052 (then a general kidnapping

statute) narrowly to preclude its “overzealous enforcement . . .

[against] persons who have committed such substantive crimes as

robbery or assault[, and] which inherently involve the temporary

detention or seizure of the victim . . . .” 604 F.2d at 226. Lest

those defendants be punished for kidnapping when “in reality

10

Martinez first argues that because Harvey entered the car

voluntarily at the Harbor View parking lot, the evidence was

insufficient to prove that he took her away against her will. We

disagree. No language exists in § 1052(b) that would absolve the

abduction of an unconsenting victim merely because the victim’s

initial interaction with the perpetrator was voluntary. We hold – as

have the majority of courts considering similar proposed

interpretations of the federal kidnapping statutes – that § 1052(b)

reaches the abduction of an individual during an otherwise

consensual encounter if consent is withdrawn at some point after

the encounter commences. 9 Harvey’s testimony that she several

[they] committed lesser or different offenses, of which temporary

seizure or detention played an incidental part,” id., we set forth four

factors to determine whether a defendant was guilty of the separate

crime of kidnapping: (1) the duration and distance of the detention

or asportation; (2) whether the detention or asportation occurred

during the commission of a separate offense; (3) whether the

detention or asportation which occurred is inherent in the separate

offense; and (4) whether the asportation or detention created a

significant danger to the victim independent of that posed by the

separate offense. Id. at 227. After we decided Berry, the Virgin

Islands legislature added § 1052(b), ultimately prompting our

decision in Ventura. There, we explained that by enacting the

kidnapping-for-rape statute, “the legislature was not concerned, as

was the Berry court, about the risk of over-zealous application of

the kidnapping charge to impose a sentence substantially greater

than that attached to the underlying crime.” 775 F.3d at 96. We

held that while the statutory amendment marginalized the second

and third Berry factors, the first and fourth factors remained

applicable to § 1052(b). Id. at 97-98. We emphasized, however,

that “the modified Berry test used in § 1052(b) cases is not a

stringent one.” Id. at 98 n.12. Here, Martinez argues that Berry

compels reversal of his conviction. He ignores Ventura entirely.

In this opinion, we refer to the “first” and “second” Ventura

factors, which are synonymous with the first and fourth Berry

factors.

9

See, e.g., United States v. Tian, 339 F.3d 143, 152 (2d Cir.

2003) (“The Hostage Taking Act . . . does not require that a seizure

11

times pleaded with Martinez to take her home easily supported the

jury’s finding that she had been detained against her will during the

car ride.

Martinez next argues that the evidence was insufficient to

sustain the element that force or threat be used to carry out the

kidnapping. We disagree. Harvey’s testimony that Martinez

brandished the gun in the car (where it remained on his lap for the

duration of the ride) was sufficient to permit the jury to find that

Martinez detained Harvey by force or threat. Introduction of the

gun into the equation stopped Harvey’s attempt to grab the steering

wheel instantly. Alternatively, immediately before Martinez

actually brandished the gun, he ordered Harvey not to grab the

steering wheel because he had a gun and did not want to be stopped

by the police. This threat alone established the element of force or

threat, whether the gun itself was ever introduced or not. See

United States v. Macklin, 671 F.2d 60, 64 (2d Cir. 1982) (noting

that a kidnapping offense requires a defendant to use “some means

of force – actual or threatened, physical or mental – . . . so that the

victim is taken, held and transported against his or her will”

or detention be against a hostage’s will from its inception.”);

United States v. Carrion-Caliz, 944 F.2d 220, 226 (5th Cir. 1991)

(“The dispositive question is not whether [the hostages] initially

agreed to go to [the hostage taker’s] house, but rather whether [the

hostages] later were detained or confined there against their will.”);

United States v. Eagle Thunder, 893 F.2d 950, 952 (8th Cir. 1990)

(“Even if [the victim] had initially consented to accompanying [the

defendant in his car], that fact would not prevent the occurrence of

a kidnapping because [the defendant] thereafter detained [the

victim] despite her repeated requests to be taken home or to her

mother.”); United States v. Redmond, 803 F.2d 438, 439 (9th Cir.

1986) (“The fact that one originally accompanies another without

being forced does not prevent the occurrence of a kidnapping

where force is later used to seize or confine the victim.”); United

States v. McBryar, 553 F.2d 433, 434 (5th Cir. 1977) (per curiam)

(kidnapping conviction upheld where defendant agreed to take

victim to one destination but drove in opposite direction and

refused her requests to be let out of automobile).

12

(emphasis added)).

Martinez next argues that any asportation in this case was

“minimal.” We disagree. The evidence readily established the first

Ventura factor (distance or duration of the asportation). Martinez

transported Harvey 10.8 miles from Harbor View to the secluded

area where the sexual encounter occurred, and the entire episode

appears to have lasted about an hour. This is plainly sufficient.

See Gov’t of the V.I. v. Alment, 820 F.2d 635, 638 (3d Cir. 1987)

(concluding that evidence of asportation from “one environment .

. . to another” over a distance of approximately seventy feet was

sufficient); Ventura, 775 F.2d at 98 (explaining that dragging

victim indoors, over a period of several minutes and for a distance

of eighty-eight feet was sufficient degree of asportation under the

less-stringent modified Berry framework).

Martinez also claims that “no evidence regarding

[independent] significant danger was ever presented at trial.”

Martinez Br. at 19. We disagree. The second Ventura factor was

satisfied by testimony regarding: (1) Martinez’s reckless driving

en route to the Salt River area; (2) the presence of the firearm

throughout the episode; and (3) the fact that the alleged kidnapping

occurred several minutes before the sexual encounter itself. See

Ventura, 775 F.2d at 98 (explaining that harm of being dragged

“through the bushes by the ear while [the defendant was] carrying

a gun” is significant danger, and independent of the rape

committed). The threat posed by the firearm and Martinez’s

driving clearly presented a danger independent of any harm posed

by the alleged sexual assault.

Finally, Martinez argues that the evidence was insufficient

to establish that he formed the specific intent to commit rape during

the asportation because the acquittal on the rape charge removes

any possible inference that he had formed the intent to commit rape

at an antecedent moment. We disagree. As an initial matter, even

accepting for the moment that the jury acquitted Martinez of rape

because it determined that the sexual intercourse was consensual,

we reject the underlying premise of the claim. There is no logical

or temporal inconsistency between a finding that Martinez intended

to rape Harvey at one point in time, and a finding that Harvey

13

nevertheless acquiesced to Martinez’s sexual advances several

minutes later.

In any event, Martinez appears to argue that, having found

the sexual act voluntary as to the rape charge, the jury was not

permitted to use Harvey’s testimony about that act in determining

his earlier intent as to the kidnapping charge. Again we disagree.

Each count of the criminal information was independent of the

next; the jury was permitted – indeed, required – to assess all of the

evidence as it pertained to each individual count. Hypothesizing

about contradictory jury verdicts does not afford a basis for

reversing a conviction on sufficiency-of-the-evidence review. See

United States v. Powell, 469 U.S. 57, 62 (1984) (reaffirming that

“[c]onsistency in the verdict is not necessary” (quoting Dunn v.

United States, 284 U.S. 390, 393 (1932))); United States v.

Mussare, 405 F.3d 161, 167 (3d Cir. 2005) (“[T]here is no

requirement that a jury’s verdict be consistent.”).

If, as Martinez presumes, the jury determined that the sexual

act was consensual as it considered the rape charge, it was not

beholden to that conclusion when it considered the kidnapping

charge. We, in turn, may not reverse purely because the jury’s

resolution of the historical facts might seem inconsistent:

[A] criminal defendant already is afforded protection

against jury irrationality or error by the independent

review of the sufficiency of the evidence undertaken

by the trial and appellate courts. This review should

not be confused with the problems caused by

inconsistent verdicts. Sufficiency-of-the evidence

review involves assessment by the courts of whether

the evidence adduced at trial could support any

rational determination of guilty beyond a reasonable

doubt. This review should be independent of the

jury’s determination that evidence on another count

was insufficient. The Government must convince

the jury with its proof, and must also satisfy the

courts that given this proof the jury could rationally

have reached a verdict of guilty beyond a reasonable

doubt. We do not believe that further safeguards

14

against jury irrationality are necessary.

Powell, 469 U.S. at 67 (emphasis added, citations omitted); see

also United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000) (“In

a single, multi-count trial, acquittal on one or more counts does not

preclude conviction on other counts based upon the same evidence,

as long as that evidence is legally sufficient to support a finding of

guilt on the count(s) of conviction.” (emphasis added)); United

States v. Church, 955 F.2d 688, 695 (11th Cir. 1992).

Thus, while the jury found that the Government had not

proved the crimes of aggravated rape and unlawful sexual contact

beyond a reasonable doubt, it was free to use Harvey’s testimony

that Martinez raped her when considering whether he had formed

the specific intent to rape at an earlier point in time. See United

States v. Sriyuth, 98 F.3d 739, 747 (3d Cir. 1996) (holding

evidence of sexual assault relevant to show defendant’s motive in

kidnapping victim); United States v. Bradshaw, 690 F.2d 704, 708

(9th Cir. 1982) (“This Court has previously held evidence of sexual

relations admissible because of its relevance to motive in a

kidnapping case.”). In sum, the jury’s acquittal on the other counts

“is irrelevant to our singular focus on and determination of whether

the evidence adduced at trial supports” the conviction on Count

Three. United States v. Veal, 153 F.3d 1233, 1253 (11th Cir.

1998).10

Viewing all of the evidence in the light most favorable to

the Government, we conclude that it was sufficient to support a

finding that Martinez possessed an intent to rape Harvey during the

car ride. Within a span of several minutes, Martinez took Harvey

against her will to a secluded area, brandished a firearm and

threatened her in doing so, immediately demanded that she have

sex with him (a demand she refused), whereupon he ordered her

out of the car before driving away. Additionally, Dawn Callwood,

10

Similarly, although it acquitted Martinez of unlawful

possession of a deadly weapon during a crime of violence, the jury

was entitled to accept Harvey’s testimony that Martinez used a gun

to carry out the kidnapping.

15

Martinez’s unrelated “aunt,” testified that some time after the

incident, Martinez called her and admitted that “something just

happened . . . [s]omething just came over him. . . . [S]omething

just popped . . . just went pop in his head.” JA 116. Callwood also

testified that Martinez attempted to “justify himself” to her, id., and

that he admitted that “something happened to Chenae.” JA 117.

Corroborating this account was Faye Martinez’s testimony that the

defendant called her after the incident and, “sound[ing] very

afraid,” said that he knew Harvey’s father and uncle were looking

for him, but that it was “not going to go down like that.” JA 217.

Drawing all reasonable inferences in the Government’s

favor, the evidence surrounding the sexual encounter, along with

Martinez’s own statements and the evidence of his aggressive,

threatening, overbearing, and violent conduct, was sufficient to

sustain the jury’s determination of Martinez’s specific intent at the

time of the kidnapping. See Ratzlaf v. United States, 510 U.S. 135,

149 n.19 (1994) (“A jury may, of course, find the requisite

knowledge on [the] defendant’s part by drawing reasonable

inferences from the evidence of [the] defendant’s conduct . . . .”).

* * * *

For these reasons, we conclude that the evidence was

sufficient to support the kidnapping for rape conviction.

IV.

Martinez claims that the Government violated his right to

due process by questioning him on his post-arrest silence, in

violation of the rule announced in Doyle v. Ohio, 426 U.S. 610

(1976). The facts underlying this claim are as follows. Martinez

testified in his own defense that earlier in the day on June 16, 2003,

Harvey asked him for $500 or $600 and said that if he gave her the

money she “would make it worth [his] while.” JA 338-39.

Martinez testified that he understood this to mean that Harvey

“wanted to have sex.” JA 339. He then testified: (1) that the

sexual episode later that evening was consensual; (2) that Harvey

thereafter demanded the money she had requested; (3) that she

threatened to tell everyone that he had raped her if he did not

16

provide the money; and (4) that when he did not give her the

money, she accused him of rape.

The Government sought to dispel Martinez’s exculpatory

account on cross-examination. The prosecutor first asked: “Did

you make a statement to Officer Berrios about what you told us

here today?” JA 350. The trial court sustained defense counsel’s

objection, and before Martinez could answer, it interjected, “You

don’t have to answer.” Id. After the prosecutor pressed Martinez

as to whether Harvey had ever before requested money from him

(Martinez admitted that she had not), this disjointed exchange

ensued:

Q. Did you ask Chenae if she had some type of problem

that she would need this 5 or $600?

A. No, sir.

Q. Did you tell [Faye] Martinez that

Chenae might be in some trouble and

needed 5 or $600?

A. No, sir.

Q. Did you tell your mother that Chenae demanded 5 or

$600 from you?

[Defense Counsel]: Objection, Your

Honor.

The Court: Overruled.

Q. Did you tell your mother that Chenae was

trying to shake you down for 5 or $600?

[Defense Counsel]: Objection as to shake

down.

The Court: Sustained.

17

Q. Did you tell your mother that Chenae

demanded 5 or $600 from you and said she

would make it worth your while?

A. No, sir.

Q. Did you tell anyone other than today that

Chenae demanded 5 or $600 from you?

[Defense Counsel]: Objection, your Honor.

The Court: Overruled.

Q. Other than your attorney –

[Defense Counsel]: Objection, your Honor.

The Court: Sustained as to the attorney.

Q. Did you tell anyone –

[Defense Counsel]: Objection. M ay we

approach, Your Honor?

The Court: You may.

JA 351-53.

At sidebar, defense counsel objected to the question whether

Martinez had told “anyone” his story, but the trial court was

unconvinced:

[Defense Counsel]: Y o u r Honor, the

defendant has a right

not to say anything to

anyone, your Honor;

has a right to remain

silent. He has a right to

privilege against self-

incrimination. He has a

18

right not to say

anything.

The Court: He has a right not to say

anything to law

enforcement officers,

but – as I see it, the

object of the

g o v e r n m e n t ’ s

[questions] is to

indicate that the

defendant recently made

up the story.

[Defense Counsel]: Well, that may very

well be so if that’s their

object. If they can get it

in, they can’t get it in

through this kind of

questioning. He has a

right not to say anything

to anyone.

The Court: I understand he has a

right not to say anything

to anyone, but they can

ask him if he said it.

JA 353. After the sidebar, this colloquy followed:

Q. Sir, did you tell anyone that Chenae

demanded 5, $600 from you?

A. Excuse me, sir?

Q. Did you tell anyone that Chenae demanded 5

to $600 from you?

A. My attorney.

19

[Defense Counsel]: I continue my objections.

The Court: Yes.

JA 354. The Government then moved to another line of

questioning.

During his summation, the prosecutor challenged Martinez’s

story that Harvey had falsely implicated him of rape. The

prosecutor emphasized Martinez’s admissions that he had never

before flirted with Harvey and that Harvey had never before

requested money from him. Accordingly, the prosecutor argued,

it would be nonsensical to believe that Harvey sought from her

cousin money in exchange for sex out of the blue. The prosecutor

never referred, however, to the fact that Martinez had proffered his

exculpatory account for the first time at trial, nor did he mention

Martinez’s post-arrest silence more generally.

“[P]articularly concerned” with the breadth of the

prosecutor’s questions whether Martinez had ever told “anyone”

his exculpatory account, the Appellate Division held that the

Government had violated Doyle. JA 578. But the court concluded

that the constitutional error was harmless because “overwhelming”

evidence existed such that “the jury could have determined that

Martinez [took] Harvey away by threat or force with the intent to

rape her.” JA 581.

Our review of this constitutional question is plenary. Gov’t

of the V.I. v. Davis, 561 F.3d 159, 163 (3d Cir. 2009). As we

explain below, violations of Doyle are subject to harmless error

analysis. Accordingly, we ask first whether a violation occurred

and, if it did, we ask whether it had an effect on the jury’s verdict

beyond a reasonable doubt. See id. We share the Appellate

Division’s concern with some of the prosecutor’s questions. We

also agree, albeit for different reasons, that any Doyle violation was

harmless beyond a reasonable doubt.

A.

Once a criminal defendant receives the prophylactic

20

warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), it

is improper under Doyle “for a prosecutor to cause the jury to draw

an impermissible inference of guilt from a defendant’s post-arrest

silence.” Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir.

1998). This is so because Miranda warnings carry the

Government’s “implicit assurance” that an arrestee’s invocation of

the Fifth Amendment right to remain silent will not later be used

against him. Davis, 561 F.3d at 163-64 (quoting Wainwright v.

Greenfield, 474 U.S. 284, 290-91 (1986)); United States v.

Johnson, 302 F.3d 139, 146 (3d Cir. 2002). Because a defendant’s

post-Miranda warning silence could be nothing more than an

invocation of his right to silence, it would be fundamentally unfair

to permit a breach of that assurance by allowing impeaching

questions as to why he failed to give an exculpatory account to the

police after receiving the warnings. See Davis, 561 F.3d at 163.11

Not every reference to a defendant’s silence, however,

results in a Doyle violation. Where “no governmental action

induce[s] the defendant to remain silent,” Fletcher v. Weir, 455

U.S. 603, 606 (1982), the Miranda-based fairness rationale does

not control. Consequently, the Government permissibly may

impeach a defendant’s testimony using his pre-arrest silence,

Jenkins v. Anderson, 447 U.S. 231, 240 (1980); his post-arrest, pre-

Miranda warning silence, Fletcher, 455 U.S. at 605-07 12 ; and any

11

The Government argues that Doyle is limited only to a

defendant’s silence immediately after receiving Miranda warnings,

not to his general silence in the lead-up to trial. The Government

argues that this case is controlled instead by Raffel v. United

States, 271 U.S. 494, 496 (1926) (holding that Fifth Amendment

“immunity from giving testimony is one which the defendant may

waive by offering himself as a witness”), and that inquiry into

Martinez’s general pretrial silence was therefore proper. We

rejected an identical argument in Davis, and therefore we need not

address the claim at length here. See 561 F.3d at 164-65; accord

Hassine, 160 F.3d at 947-49; United States v. Balter, 91 F.3d 427,

439 (3d Cir. 1996).

12

The Government argues that Martinez failed to lay an

evidentiary foundation that he received Miranda warnings, and

accordingly that no Doyle violation occurred under Fletcher. It is

21

voluntary post-Miranda warning statements, Anderson v. Charles,

447 U.S. 404, 408-09 (1980). Additionally, under Greer v. Miller,

483 U.S. 756 (1987), “there may be no Doyle violation where the

trial court sustains an objection to the improper question and

provides a curative instruction to the jury, thereby barring the

prosecutor from using the silence for impeachment.” Davis, 561

F.3d at 164 (citing Greer, 483 U.S. at 764-65).

Having scrupulously reviewed the trial transcript, we share

the Appellate Division’s concern with some of the Government’s

questions. Referring to Martinez’s exculpatory account, the

prosecutor first asked: “Did you make a statement to Officer

Berrios about what you told us here today?” JA 350. The

prosecutor clearly sought by this question to undermine Martinez’s

story by highlighting his failure to tell the officer that same version

at an earlier point in time. We cannot say with certainty, however,

that the question was improper, because a crucial ambiguity exists

in the record regarding Officer Berrios. Harvey’s testimony on

cross-examination reveals circumstantially that the officer took her

statement at the hospital two days after the incident. JA 181-85,

189. But Officer Berrios did not testify at trial, and the record does

not disclose what role he played in Martinez’s arrest, or whether

Martinez’s failure to give the exculpatory story to him occurred

before or after the arrest, or before or after Miranda warnings had

been given.

Accordingly, we cannot discern whether the prosecutor’s

question was permissible under Jenkins, Fletcher, or Anderson on

the one hand, or whether it violated Doyle on the other.13 The

the Government, however, that bears the burden of establishing

that no Miranda warnings were given if post-arrest silence is to be

used. United States v. Cummiskey, 728 F.2d 200, 206 (3d Cir.

1984). Because it does not ultimately affect our disposition, we

will assume arguendo that Martinez received the warnings.

13

If the question was improper, the Supreme Court’s

decision in Greer does not cure it. While defense counsel

immediately and successfully interposed an objection to the

question (thus precluding Martinez’s silence from actually being

22

context of the question and the lack of relevant evidence

underlying it give us pause, and our analysis below is mindful of

these uncertainties. Unable to answer definitively whether the

question violated Doyle, we turn to the questions that Martinez

centrally challenges on appeal – those in which the prosecutor

asked whether Martinez had ever told “anyone” his exculpatory

account.14

We also share the Appellate Division’s concern that these

questions “were overly broad and [their] breadth and obscurity

affect the applicable review . . . .” JA 578. Because the prosecutor

placed no personal or temporal specifications on the questions, they

might well have been construed as targeting Martinez’s post-arrest,

post-Miranda warning failure to proffer his story to the police. See

United States v. Dodd, 111 F.3d 867, 869 (11th Cir. 1997) (per

curiam) (“A comment is deemed to be a reference to a defendant’s

silence if . . . it was of such a character that the jury would naturally

and necessarily understand it to be a comment on a defendant’s

silence.” (quotation marks omitted)).

The Appellate Division was hesitant to construe such open-

ended and ambiguous questions against Martinez. So are we.

Under the circumstances, we think that the prosecutor’s

questioning in this case approached the constitutional line, and

likely crossed it. However, we need not decide definitively

whether the Government’s questions violated Doyle, because we

will affirm the District Court’s judgment even assuming that they

submitted to the jury, see Johnson, 302 F.3d at 147), the trial court

failed to provide a curative instruction to the jury that it was not to

consider Martinez’s post-arrest silence against him. We have

emphasized on several occasions the importance of such an

instruction in order for Greer to apply. See Davis, 561 F.3d at 164;

Johnson, 302 F.3d at 148 n.10; Hassine, 160 F.3d at 948.

Additionally, the prosecutor went on to ask other potentially

problematic questions.

14

Martinez does not take issue with the questions regarding

whether he told his story to Faye Martinez or his mother, and we

therefore do not address them.

23

did. See United States v. Rodriguez, 43 F.3d 117, 122 (5th Cir.

1995) (assuming for the sake of argument that a Doyle violation

occurred where the “prosecutor’s questions were sufficiently broad

as to be construed as commentary on [the defendant’s] failure to

come forward with his alibi (1) prior to arrest, (2) immediately after

arrest and Miranda warnings . . . , and (3) during the time period

prior to trial but following his arrest”); cf. United States v. Balter,

91 F.3d 427, 440 (3d Cir. 1996) (assuming arguendo that the

prosecutor’s questions violated Doyle and proceeding to harmless-

error analysis).

B.

We hold that any Doyle violation here was harmless beyond

a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24

(1967) (holding that a constitutional error is harmless where it can

be “prove[d] beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained”); Balter, 91 F.3d at

440 (“The Supreme Court has held ‘that Doyle error fits squarely

into the category of constitutional violations which [it] has

characterized as trial error.’” (quoting Brecht v. Abrahamson, 507

U.S. 619, 629 (1993)) (alteration in Balter)).

Before explaining why, we pause to note that the Appellate

Division’s analysis suffers from the same deficiencies that we

recently identified in Davis. The court held in this case that any

Doyle error was harmless because “the evidence of Martinez’[s]

guilt . . . was overwhelming” and accordingly that “even without

the prosecutor’s inappropriate question, the jury could have

determined that Martinez [committed kidnapping for rape].” JA

581. By comparison, in Davis, the Appellate Division held that the

Doyle error was harmless because there existed “significant

evidence from which the jury could have found guilt.” 561 F.3d at

165 (quotation marks omitted). Rejecting that formulation, we

reminded the court that the relevant question under Chapman “is

not whether, in a trial that occurred without the error, a guilty

verdict would surely have been rendered, but whether the guilty

verdict actually rendered in this trial was surely unattributable to

the error.” Id. (quoting United States v. Korey, 472 F.3d 89, 96 (3d

Cir. 2007)). Our ensuing explanation applies equally here:

24

[W]e are unsatisfied with this conclusion insofar as

the Appellate Division focused on whether the

evidence was sufficient to convict despite the error,

as opposed to whether there was a reasonable

possibility that the error contributed to the jury

verdict. See Satterwhite v. Texas, 486 U.S. 249,

258-59 (1988) (“The question, however, is not

whether the legally admitted evidence was sufficient

. . . but rather, whether the [Government] has proved

‘beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained.’”

(quoting Chapman, 386 U.S. at 24)).

Id. at 166. We are compelled to reiterate that constitutional

harmless-error analysis is not merely a review of whether the jury

“could have” returned a verdict absent the constitutional error.

Such an analysis improperly conflates sufficiency-of-the-evidence

review with the appropriate Chapman standard.

We are similarly unconvinced – as we were in Davis, see id.

– that the evidence proffered against Martinez can be characterized

as “overwhelming.” Martinez did not dispute at trial that he took

Harvey to the Salt River in his car, nor did he deny that he had

sexual intercourse with her. Consequently, the central issue in the

case concerned whether the episode was consensual, and thus it

turned on the credibility of Harvey, Dawn Callwood, Faye

Martinez, and the defendant. Although Callwood and Faye

Martinez both testified that the defendant called them after the

incident and implicated himself (thus corroborating Harvey’s

account and strengthening the Government’s case), these witnesses

were subject to rigorous cross-examination concerning their

possible biases. See id. (highlighting the “close associations”

between the three eyewitnesses whose testimony purportedly

provided “overwhelming evidence” against the defendant). At

bottom, a critical issue in the case largely required the jury to

choose sides in a classic he-said, she-said contest. While we agree

that the evidence was solid, we cannot agree with the Appellate

Division that overwhelming evidence against Martinez alone

rendered any error harmless.

25

The foregoing does not inexorably lead us to doubt that the

prosecutor’s questions played no part in the verdict here. While

many of our Doyle cases focus on the quantum of evidence against

the defendants, see, e.g., Balter, 91 F.3d at 440, harmless-error

analysis must, by necessity, take into account the totality of the

circumstances. We have never held, nor do we now, that the

amount of incriminating evidence is the only factor implicated in

a Doyle harmless-error analysis. Cf. Rodriguez, 43 F.3d at 123

(analyzing whether Doyle error was harmless in light of “the entire

record”); United States v. Thomann, 609 F.2d 560, 566 (1st Cir.

1979) (“In the light of all the circumstances in this case . . . , we

find that . . . [the error] was harmless and not grounds for

reversal.”). Under all of the circumstances presented by this case,

two related factors ultimately convince us beyond doubt that any

error did not affect the jury’s verdict.

First is the garbled nature of the challenged colloquy

between court, counsel, and witness. Compare United States v.

Agee, 597 F.2d 350, 359 (3d Cir. 1979) (en banc) (finding any

Doyle error harmless where the challenged question was

ambiguous, and explaining that it was unlikely the jury “understood

and recollected” the question as anything more than an innocuous

reference), with Davis, 561 F.3d at 167 (finding Doyle error not

harmless where the prosecutor’s questions directly and clearly

undermined the plausibility of the defense), and United States v.

Curtis, 644 F.2d 263, 270-71 (3d Cir. 1981) (finding Doyle

violation not harmless where the improper questions were “neither

isolated nor ambiguous”).

The challenged questions before the sidebar – which we

have already described as overly broad and ambiguous – were

either interrupted or immediately followed by objections from

defense counsel (some the trial court sustained, some it overruled),

preventing the jury from learning or inferring the answers to the

questions and thus compounding the ambiguity surrounding them.

The questions posed and the answers given after the sidebar were

no clearer. Martinez himself needed the prosecutor to repeat his

question, and he then referenced his attorney, provoking yet

another immediate objection (on an altogether different basis),

before the prosecutor promptly moved to another subject. The

26

prosecutor’s open-ended questions and attempted questions, the

barrage of intermittent objections and interruptions, the varying

responses by the trial court, and the partial answers by the

defendant all combine to obfuscate further what was already an

unclear allusion to Martinez’s post-Miranda warning silence.

Having studied the transcript, we believe it is exceedingly unlikely

that the jury was able to arrive at a negative inference based on the

oblique and muddled manner in which Martinez’s silence was put

before them.

Second, while the challenged questions cannot be said to be

“isolated” (as the prosecutor asked a number of times whether

Martinez had told his story to “anyone”), see Curtis, 644 F.2d at

270-71; Agee, 597 F.2d at 359, the questions were plainly not a

focal point of the cross-examination. In context, the questions

were far from flagrant violations of Doyle, but instead came and

went in relative passing. See Davis, 561 F.3d at 166 (looking to

“the severity of the Doyle violation” when conducting the

harmless-error analysis); United States v. Scott, 47 F.3d 904, 907

(7th Cir. 1995) (finding Doyle error harmless where references to

post-arrest silence “were limited in their intensity and frequency”).

The challenged questions here covered only a small fraction

of the furious cross-examination covering multiple subjects and

spanning twenty pages of the trial transcript, and were hardly the

type of frontal assaults on post-arrest, post-Miranda warning

silence that our Court and other courts have held not to be

harmless. Additionally, the prosecutor not once referred to

Martinez’s post-arrest silence or the prior questions about it during

summation. Instead, he attacked the veracity of the defendant’s

account only on the basis that it lacked consistency with his and

Harvey’s relationship and their conduct before the incident. This

fact, in our view, is critical. Compare Scott, 47 F.3d at 907

(finding single improper reference during summation to be

harmless), and Agee, 597 F.2d at 359 (noting that counsel did not

refer during summation to an arguably improper reference to post-

arrest silence), with Davis, 561 F.3d at 162, 167 (finding no

harmless error where prosecutor repeatedly emphasized the

defendant’s post-arrest silence during summation), and United

States v. Cummiskey, 728 F.2d 200, 204 (3d Cir. 1984) (finding

27

Doyle error not harmless, in part because “[t]he prosecutor

emphasized Cummiskey’s silence . . . both during the trial and

extensively during closing argument.” (emphasis added)).15

* * * *

The challenged colloquy here was ambiguous and

disjointed, and was riddled with interruptions and half-answers.

The prosecutor did not highlight Martinez’s silence, and after a

passing moment he moved on, never referencing the point again.

Under all of the circumstances here, we conclude that any error

played no role in the jury’s verdict. It was therefore harmless.

V.

Martinez asserts two final claims on appeal: (1) that the trial court

committed reversible error by admitting implicit and prejudicial

hearsay during Harvey’s testimony; and (2) that the trial court’s

jury instructions with respect to the kidnapping charge were

impermissibly incomplete. A thorough review of the record

convinces us that these claims are entirely without merit, and we

reject them without further discussion.

15

We recognize, of course, that in this case the trial court

did not give an immediate curative instruction, for it did not

recognize the potential problem that the questions posed. See

Davis, 561 F.3d at 167 (explaining that “the absence of a curative

instruction by the Territorial Court likely left the jury with the false

impression that the prosecutor’s references to Davis’s silence . . .

were appropriate”). We reiterate the manifest importance of

immediate curative instructions whenever a defendant’s post-

Miranda warning silence is mentioned before the jury. We also

emphasize that many Doyle violations will not be harmless

precisely because the court did not provide an instruction. It is not

the case, however, that a court’s failure to give a curative

instruction precludes in all cases satisfaction of the Chapman

harmless-error standard. It is the vague and ultimately

inconsequential nature of the violation that compels the result in

this case.

28

VI.

For the foregoing reasons, we will affirm the order of the

Appellate Division.

29