United States v. Gathon Shannon

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