Petition for Writ of Certiorari — Dion Marsh, Petitioner v. United States

No. 25-______

In the

Supreme Court of the United States

__________________

DION MARSH,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

K. ANTHONY THOMAS

TIMOTHY M. SHEPHERD

Counsel of Record

OFFICE OF THE FEDERAL PUBLIC DEFENDER

22 South Clinton Avenue

Station Plaza #4, 4th Floor

Trenton, New Jersey 08609

(609) 690-0414

timothy_shepherd@fd.org

Counsel for Petitioner

November 10, 2025

i

QUESTION PRESENTED

Whether the Fifth Amendment prohibits a sentencing court from inferring

remorselessness from a criminal defendant’s silence.

ii

PARTIES TO THE PROCEEDING

Pursuant to this Court’s Rule 14.1(b)(i), petitioner submits that there are no

parties to the proceeding other than those named in the caption of the case.

Petitioner Dion Marsh was the defendant in the district court and appellant

below.

Respondent United States of America was the plaintiff in the district court and

appellee below.

STATEMENT OF RELATED PROCEEDINGS

This case arises from and is directly related to the following proceedings in the

U.S. District Court for the District of New Jersey and the U.S. Court of Appeals for

the Third Circuit:

United States v. Dion Marsh, No. 3:24-cr-0071-ZNQ-01 (D.N.J.) (July 24, 2024).

United States v. Dion Marsh, No. 24-2452 (3d Cir.) (Aug. 13, 2025).

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING ............................................................................... ii

STATEMENT OF RELATED PROCEEDINGS ........................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES ......................................................................................... iv

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

OPINIONS BELOW ...................................................................................................... 4

JURISDICTION............................................................................................................. 4

CONSTITUTIONAL PROVISION INVOLVED ........................................................... 4

STATEMENT OF THE CASE....................................................................................... 5

A. Legal Background ................................................................................................. 5

B. Factual Background .............................................................................................. 7

REASONS FOR GRANTING THE PETITION .......................................................... 12

A. Circuit Courts are Confused and Deeply Divided over Whether Sentencing

Courts May Infer Remorselessness from Silence. ............................................. 12

B. The Decision Below is Wrong. ............................................................................ 18

1. Inferring remorselessness from silence at sentencing violates the Fifth

Amendment principles in Griffin, Estelle, and Mitchell. ............................... 18

2. The Fifth Amendment violation is even clearer where, as here, the

district court compels a sentencing allocution. .............................................. 23

C. The Question Presented Is Critically Important. .............................................. 24

D. This Case Is an Ideal Vehicle for Addressing the Question Presented. ........... 27

CONCLUSION............................................................................................................. 29

APPENDIX A: Court of Appeals Opinion (Aug. 13, 2025) …………………….……….1a

APPENDIX B: Court of Appeals Order Denying Rehearing (Sept. 12, 2025) .…......6a

APPENDIX C: Sentencing Transcript (Jul. 23, 2024)

(Excerpt, pp. 1, 13–14, 18–22, 31–42) …….……………………………..………….…7a

APPENDIX D: Judgment (Jul. 24, 2024) …………………………..........……………..27a

iv

TABLE OF AUTHORITIES

Cases

Beardslee v. Woodford,

358 F.3d 560 (9th Cir.) ............................................................................................. 13

Brake v. State,

939 P.2d 1029 (Nev. 1997)........................................................................................ 17

Burr v. Pollard,

546 F.3d 828 (7th Cir. 2008) .......................................................................... 2, 16, 27

Carter v. Kentucky,

450 U.S. 288 (1981) .................................................................................... 5, 6, 23, 24

Counselman v. Hitchcock,

142 U.S. 547 (1892) .................................................................................................. 19

Estelle v. Smith,

451 U.S. 454 (1981) ........................................................ 1, 6, 7, 13, 14, 18, 19, 20, 21

Griffin v. California,

380 U.S. 609 (1965) .................................................. 1, 5, 6, 13, 16, 18, 20, 21, 23, 24

Isaacs v. Head,

300 F.3d 1232 (11th Cir. 2002) ................................................................................ 13

Lee v. Crouse,

451 F.3d 598 (10th Cir. 2006) .................................................................................. 16

Lesko v. Lehman,

925 F.2d 1527 (3d Cir. 1991) .................................................................... 2, 11, 13, 15

Malloy v. Hogan,

378 U.S. 1 (1964) ...................................................................................................... 18

Mitchell v. United States,

526 U.S. 314 (1999) ........... 1, 2, 6, 7, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25

Molina-Martinez v. United States,

578 U.S. 189 (2016) .................................................................................................. 25

People v. Ervin,

990 P.2d 506 (Cal. 2000) .......................................................................................... 17

People v. Matute,

168 N.E.3d 673 (Ill. Ct. App. 2020) .......................................................................... 17

v

People v. Young,

987 P.2d 889 (Colo. App. 1999) ................................................................................ 17

Rosales-Mireles v. United States,

585 U.S. 129 (2018) .................................................................................................. 25

State v. Barnes,

637 A.2d 398 (Conn. App. Ct. 1994)......................................................................... 17

State v. Brunson,

218 N.E.3d 765 (Ohio 2022) ..................................................................................... 17

State v. Burgess,

943 A.2d 727 (N.H. 2008) ......................................................................................... 17

State v. Clegg,

635 N.W.2d 578 (S.D. 2001) ..................................................................................... 17

State v. Hardwick,

905 P.2d 1384 (Ariz. Ct. App. 1995)......................................................................... 17

State v. Kamana‘o,

82 P.3d 401 (Haw. 2003) .......................................................................................... 17

State v. Muscari,

807 A.2d 407 (Vt. 2002) ............................................................................................ 17

State v. Shreves,

60 P.3d 991 (Mont. 2002) ......................................................................................... 17

State v. Williams,

389 S.E.2d 830 (N.C. Ct. App. 1990)........................................................................ 17

Ullmann v. United States,

350 U.S. 422 (1956) .................................................................................................... 5

United States v. Caro,

597 F.3d 608 (4th Cir. 2010) .............................................................. 2, 13, 14, 15, 18

United States v. Cooper,

91 F. Supp. 2d 90 (D.D.C. 2000)............................................................................... 15

United States v. Dura-Munez,

539 F. App’x 407 (5th Cir. 2013) (unpublished) ...................................................... 16

United States v. Fruge,

2025 WL 1288450 (2d Cir. May 5, 2025) (unpublished) ......................................... 15

vi

United States v. Hale,

422 U.S. 171 (1975) .................................................................................................. 26

United States v. Johnston,

789 F.3d 934 (9th Cir. 2015) .................................................................................... 12

United States v. Mikos,

539 F.3d 706 (7th Cir. 2008) ........................................................................ 15, 16, 27

United States v. Roman,

371 F. Supp. 2d 36 (D.P.R. 2005) ............................................................................. 15

United States v. Runyon,

707 F.3d 475 (4th Cir. 2013) .................................................................................... 15

United States v. Sepulveda,

64 F.4th 700 (5th Cir. 2023) ..................................................................................... 15

United States v. Smith,

553 F. App’x 130 (3d Cir. 2014) (unpublished) ........................................................ 13

United States v. Stanley,

739 F.3d 633 (11th Cir. 2014) .................................................................................. 15

United States v. Sterkaj,

138 F.4th 95 (2d Cir. 2025) ...................................................................................... 15

United States v. Warren,

338 F.3d 258 (3d Cir. 2003) ...................................................................................... 22

United States v. Whitson,

77 F.4th 452 (6th Cir. 2023) ..................................................................................... 14

United States v. Whitten,

610 F.3d 168 (2d Cir. 2010) ...................................................................................... 22

White v. Woodall,

572 U.S. 415 (2014) ........................................................................ 2, 7, 12, 16, 19, 20

Statutes

28 U.S.C. § 1254(1) ........................................................................................................ 4

Constitutional Provisions

U.S. Const.

amend. V .... 1, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28

vii

Other Authorities

Alexandra Natapoff, Speechless: The Silencing of Criminal

Defendants, 80 N.Y.U. L. Rev. 1449 (2005) ............................................................. 26

Caleb J. Fountain, Silence and Remorselessness,

81 Alb. L. Rev. 267 (2018) ...................................................................... 13, 21, 22, 26

Jules Epstein, Silence: Insolubly Ambiguous and Deadly:

The Constitutional, Evidentiary and Moral Reasons for

Excluding “Lack of Remorse” Testimony and Argument in

Capital Sentencing Proceedings,

14 Temp. Pol. & Civ. Rts. L. Rev. 45 (2004) ............................................................ 26

Paul Peterson, A Decade Redrawn: Presentence Boundaries

of the Privilege Against Compelled Self-Incrimination Since

Mitchell v. U.S., 25 Fed. Sent. R. 81, 82 (2012)....................................................... 17

Tracey Maclin, Is Silence Golden?, 65 Ariz. L. Rev. 43 (2023)......................... 6, 20, 22

U.S. Sent. Comm’n, 2024 Sourcebook of Federal

Sentencing Statistics (2025) ..................................................................................... 24

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Dion Marsh respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Third Circuit. The Court

should resolve an issue it left open in Mitchell v. United States, 526 U.S. 314 (1999):

whether the Fifth Amendment protections against self-incrimination at sentencing

prohibit a court from inferring a lack of remorse from a criminal defendant’s silence.

The Fifth Amendment to the U.S. Constitution prohibits the government from

compelling defendants to be witnesses against themselves in criminal cases. That

protection extends to sentencing, see Mitchell, 526 U.S. 314, and prohibits not just

direct compulsion, but adverse inferences from silence that result in penalties, see

Griffin v. California, 380 U.S. 609 (1965). Indeed, “there can be little doubt that the

rule prohibiting an inference of guilt from a defendant’s rightful silence has become

an essential feature of our legal tradition.” Mitchell, 526 U.S. at 330. The inescapable

conclusion from Griffin and Mitchell is that a sentencing judge cannot draw any

adverse inferences from a defendant’s silence that results in a more severe penalty,

including about his perceived lack of remorse. The Court has, in fact, already imposed

that broader rule even before Mitchell in the capital sentencing context. See Estelle

v. Smith, 451 U.S. 454 (1981). But in Mitchell, the Court held only that “facts relevant

to the crime” cannot be proven by a defendant’s silence at sentencing, while tabling

2

for another day the issue of whether “silence bears upon the determination of a lack

of remorse[.]” 526 U.S. at 330.

Now is the time for this Court to answer that question. “The Courts of Appeals

have recognized that Mitchell left this unresolved; their diverging approaches to the

question illustrate the possibility of fairminded disagreement.” White v. Woodall, 572

U.S. 415, 422 n.3 (2014). But that “fairminded disagreement,” is better characterized

as confusion and intractable division between lower courts over this important

question. Compare Burr v. Pollard, 546 F.3d 828, 832 (7th Cir. 2008), with United

States v. Caro, 597 F.3d 608, 629–30 (4th Cir. 2010); Lesko v. Lehman, 925 F.2d 1527,

1544–45 (3d Cir. 1991). All the while, tens of thousands of federal criminal

defendants, and countless more state defendants, are sentenced every year, unsure

of whether they might be penalized for exercising their constitutional right to remain

silent.

This case powerfully illustrates that confusion. The district court below

repeatedly commented on Petitioner’s silence, which it characterized as a “lack of

remorse,” justifying a considerable upward variance. It even employed language

unmistakably designed to compel Petitioner to allocute, only to use his subsequent

statements to further justify a higher sentence. A panel of the Third Circuit affirmed,

despite binding precedent in the Third Circuit seemingly prohibiting the adverse

remorselessness inference. See Lesko, 925 F.2d at 1544–45. Even in circuits that have

3

resolved this question, courts remain confused and provide litigants with conflicting

guidance. This type of uncertainty is intolerable when a fundamental constitutional

right is at risk.

The Court should, accordingly, grant certiorari to address this critical issue.

4

OPINIONS BELOW

The Third Circuit’s Opinion is reported at 2025 WL 2335965 and is reproduced

at Pet. App. 1a–5a. The district court’s decision is not reported but the relevant

portions of the sentencing transcript and the court’s judgment are reproduced at Pet.

App. 7a–33a.

JURISDICTION

The Third Circuit issued its opinion on August 13, 2025 and the deadline to

file a petition for writ of certiorari is November 11, 2025. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution states in relevant part: “No person

… shall be compelled in any criminal case to be a witness against himself …”

5

STATEMENT OF THE CASE

A. Legal Background

The Fifth Amendment to the United States Constitution provides that: “No

person … shall be compelled in any criminal case to be a witness against himself.”

The privilege against self-incrimination “registers an important advance in the

development of our liberty—‘one of the great landmarks in man’s struggle to make

himself civilized.’” Ullmann v. United States, 350 U.S. 422, 426 (1956) (citation

omitted).

The inclusion of the privilege against compulsory selfincrimination in the Fifth Amendment reflects many of our

fundamental values and most noble aspirations: our

unwillingness to subject those suspected of crime to the cruel

trilemma of self-accusation, perjury or contempt; … our fear that

self-incriminating statements will be elicited by inhumane

treatment and abuses; our sense of fair play which dictates a fair

state-individual balance by requiring the government …, in its

contest with the individual to shoulder the entire load, …; our

distrust of self-deprecatory statements; and our realization that

the privilege, while sometimes a shelter to the guilty, is often a

protection to the innocent.

Carter v. Kentucky, 450 U.S. 288, 299–300 (1981) (cleaned up).

The Fifth Amendment privilege against self-incrimination protects not only

the right to “remain silent” at trial, but “further guarantees that no adverse

inferences are to be drawn from the exercise of that privilege.” Id. at 305 (citing

Griffin, 380 U.S. 609). This Court held in Griffin that any “comment on the refusal to

testify is a remnant of the inquisitorial system of criminal justice,” and is a “penalty

6

imposed by courts for exercising a constitutional privilege,” which “cuts down on the

privilege by making its assertion costly.” 380 U.S. at 614. Accordingly, the Fifth

Amendment “forbids either comment by the prosecution on the accused’s silence or

instructions by the court that such silence is evidence of guilt.” Id. at 615. To further

safeguard this right, courts must specifically give a “no-adverse-inference” jury

instruction when requested by a criminal defendant. See Carter, 450 U.S. at 299.

After all, “[j]ust as adverse comment on a defendant’s silence ‘cuts down on the

privilege by making its assertion costly,’ … the failure to limit the jurors’ speculation

on the meaning of that silence … exacts an impermissible toll on the full and free

exercise of the privilege.” Id. at 305 (citing Griffin, 380 U.S. at 614). Simply put, the

“absolute right not to testify is meaningless if state officials can urge jurors to use a

defendant’s silence as substantive evidence of guilt.” Tracey Maclin, Is Silence

Golden?, 65 Ariz. L. Rev. 43, 49 (2023) (“Maclin”).

The self-incrimination privilege likewise protects against adverse inferences

drawn from a defendant’s silence at sentencing. See Mitchell, 526 U.S. 314. The

Constitution protects against compulsion “in any criminal case,” see U.S. Const.

amend. V, and a “sentencing hearing is part of the criminal case—the explicit concern

of the self-incrimination privilege.” Mitchell, 526 U.S. at 328. Even where a defendant

pleads guilty to a crime, the entry of the plea does not complete the incrimination of

the defendant nor extinguish the privilege. Id. at 325 (citing Estelle, 451 U.S. at 462).

7

“Where the sentence has not yet been imposed a defendant may have a legitimate

fear of adverse consequences from further testimony. ... ‘Any effort by the State to

compel [the defendant] to testify against his will at the sentencing hearing clearly

would contravene the Fifth Amendment.’” Id. at 326 (citing Estelle, 451 U.S. at 463).

“The essence of this basic constitutional principle is ‘the requirement that the State

which proposes to convict and punish an individual produce the evidence against him

by the independent labor of its officers, not by the simple, cruel expedient of forcing

it from his own lips.’” Estelle, 451 U.S. at 462 (citation omitted and emphasis in

original).

This Court in Mitchell, however, limited its holding to inferences about “facts

relevant to the crime at the sentencing phase,” while keeping open the question here.

526 U.S. at 330. It explained: “Whether silence bears upon the determination of a

lack of remorse … is a separate question. It is not before us, and we express no view

on it.” Id. Lower federal and state courts disagree about whether Mitchell’s holding

should extend to prohibiting adverse inferences of remorselessness at sentencing

from silence. See Woodall, 572 U.S. at 422 n.3

B. Factual Background

On April 8, 2022, Petitioner Dion Marsh committed a series of attacks on

Orthodox Jewish men in Lakewood, New Jersey. Thankfully, all of the victims

survived, though several sustained serious, permanent injuries. The attacks were all

8

the more shocking because of Marsh’s absence of prior criminal history, violent or

otherwise, and the lack of any evidence of prior animus towards the Jewish

community. Marsh did, however, struggle with addiction and in the month leading

up to the attack was in the throes of a clear mental health crisis. His family and

friends repeatedly sought police intervention for his increasingly erratic, paranoid,

and delusional behavior, including the day before his attack. Their concerns were

tragically ignored. Marsh was arrested soon after the attack, and quickly admitted

his actions. He agreed to plead guilty to state charges and to serve 30 years in prison.

Despite this, the federal government pursued charges as well. The decision was

unusual, because the government did not assert that its interests were in any way

left unvindicated by the expected lengthy state sentence. To the contrary, the

government agreed with Marsh that he should serve no additional prison time.

Indeed, it offered a plea deal whereby it would recommend a shorter and concurrent

sentence within a calculated Guidelines range of 168 to 210 months’ imprisonment.

Marsh accepted that offer and pled guilty with the understanding that he was

unlikely to receive additional prison time unless the district court wholly ignored the

parties’ joint recommendations.

The district court did just that, and sentenced Marsh to 40 years in prison,

concurrent to his state sentence—an additional ten years. The court disagreed with

the parties that the attempted second-degree, instead of first-degree, murder

9

Guideline should apply, increasing the Guidelines range to 324 to 405 months. It also

declined to consider the undisputed mitigating evidence of Marsh’s mental decline,

including police reports, text messages, and a qualified licensed master social

worker’s clinical opinion that Marsh had undergone a “psychotic episode triggered at

least in part by the cessation of drug use and myriad life stressors affecting him in

2022.” The court called this speculative.

The court also imposed a massive upward variance to 480 months, in large part

because it found Marsh to be remorseless. Early in the sentencing, the court asked

defense counsel, “Is your client going to express any remorse?” noting Marsh had

“expressed zero remorse during this process.” Pet. App. 8a. When counsel advised

that Marsh had shown remorse in their private conversations, the court responded,

“Well, he hasn’t told this Court. He hasn’t told anybody else, and he has an

opportunity to do that if he wants to demonstrate remorse, and he has refused to do

that. So I wanted to put that on the record.” Pet. App. 8a–9a. The court opined that

“Mr. Marsh could [sic] care less,” and, again, that he “has showed zero remorse.” Pet.

App. 9a. Shortly thereafter, and still before Marsh had been given an opportunity to

allocute, the court returned to these concerns:

He sits here currently today without any remorse for what he’s

done. He has not submitted anything to the Court to show that

he’s remorseful. I don’t even know if he intends to speak today. I

guess we’ll find out to see how sorry he is and see what he wants

to say today, but he’s demonstrated no remorse for the crimes he

committed. None.

10

Pet. App. 11a.

The court’s statements served their unsubtle purpose and compelled Marsh to

allocute about his remorse. He stated the “things that happened in April clearly are

horrible. I’m more than gravely, like, really sorry about the whole situation and

things that happened. Like, things happened out of my control.” Pet. App. 14a. Marsh

specifically attempted to correct any misconceptions about his perceived “hard and

cold” affect, accepted responsibility, and again expressed his sympathies for the

victims. Pet. App. 14a. Despite those statements, the court insisted Marsh had

demonstrated a “lack of remorse,” and that his words were “disingenuous … at best.”

Pet. App. 15a. Throughout the rest of sentencing, the court repeatedly accused Marsh

of being remorseless. See Pet. App. 18a (“he has not accepted any sort of remorse. He

has not convinced the Court that he’s even sorry for what he’s done. … you don’t seem

to have any remorse …”), 19a (“He has demonstrated no remorse for the crimes he’s

committed.”), 20a (“he hasn’t shown any genuine lack [sic] of remorse for the crimes

that he committed”), 24a (“his lack of remorse”). It then cited those conclusions as

grounds for its upward variance. Pet. App. 15a, 18a–20a, 24a.

Marsh raised several sentencing issues on appeal, including that the court had

inferred remorselessness from his silence in violation of his Fifth Amendment right.

Marsh explained that the Third Circuit had already held that a defendant’s silence

cannot be characterized as a failure to express remorse during penalty proceedings.

11

See Lesko, 925 F.2d at 1544–45. And, the court here had not just inferred

remorselessness—it actually compelled Marsh to allocute, thereby indirectly and

directly violating his Fifth Amendment right not to testify against himself. A panel

of the Third Circuit rejected all of Marsh’s arguments in a brief, five-page

unpublished opinion, dedicating just two paragraphs to this constitutional question.

Pet. App. 1a–5a. The panel appeared to have missed the extensive briefing on Lesko,

which was mentioned nowhere in the opinion, and instead simply stated “the Third

Circuit has not addressed this question[.]” Pet. App. 5a. Marsh petitioned for

rehearing by the panel or the en banc court, explaining that the panel’s decision was

foreclosed by binding Third Circuit precedent. That petition was denied. Pet. App. 6a.

12

REASONS FOR GRANTING THE PETITION

A. Circuit Courts are Confused and Deeply Divided over Whether

Sentencing Courts May Infer Remorselessness from Silence.

There is now a circuit split on the question left open in Mitchell—whether

sentencing courts may infer remorselessness from silence. Justice Scalia predicted a

“decent period of confusion in the lower courts” over whether Mitchell’s holding would

extend to other sentencing inferences like remorse. Mitchell, 526 U.S. at 340 (Scalia,

J., dissenting). And this Court has since acknowledged Justice Scalia’s prediction has

come true. See Woodall, 572 U.S. at 422 n.3 (noting the “diverging approaches” as an

illustration of “fairminded disagreement” between jurists). Many circuit courts have

been cautious about even wading into this area, leaving the precise rules in any given

circuit far from clear. One can hardly blame them. “The question of how the Fifth

Amendment privilege interacts with the legitimate sentencing consideration of lack

of remorse is a difficult one.” United States v. Johnston, 789 F.3d 934, 943 (9th Cir.

2015). But what has emerged is clear disagreement over the limits of Mitchell. The

Second, Third, Fourth, Sixth, and Ninth Circuits have each recognized that such

remorselessness inferences violate, or are in tension with, the Fifth Amendment.

Meanwhile, the Seventh, and possibly the Fifth and Tenth Circuits, would permit

inferences about remorse under a narrow reading of Mitchell. The deepening—and

admittedly confusing—circuit split over such an important issue requires this Court’s

intervention.

13

The Third Circuit was the first to recognize that the Fifth Amendment

prohibits commentary on a defendant’s failure to express remorse during penalty

proceedings. Lesko, 925 F.2d at 1544–45. In Lesko, the Court held that a “prosecutor’s

criticism of [a defendant’s] failure to express remorse penalized the assertion of his

fifth amendment privilege against self-incrimination, in violation of the rule in

Griffin v. California.” Id. at 1545. Lesko addressed improper arguments by a

prosecutor during the penalty phase of a capital case, seeking an adverse inference

from a defendant’s silence. But its reasoning extends with equal force to judicial

inferences from silence at any sentencing. Cf. Mitchell, 526 U.S. at 326 (“Estelle was

a capital case, but we find no reason not to apply the principle to noncapital

sentencing hearings as well.”). Indeed, other courts and scholars cite to Lesko for this

very proposition. See Caro, 597 F.3d at 629; Isaacs v. Head, 300 F.3d 1232, 1271 (11th

Cir. 2002); Caleb J. Fountain, Silence and Remorselessness, 81 Alb. L. Rev. 267, 269

& n.15 (2018) (“Fountain”) (characterizing Lesko as among the cases that prohibit the

use of silence at sentencing as evidence of remorselessness). 1 The Ninth Circuit has

followed the reasoning of Lesko. See Beardslee v. Woodford, 358 F.3d 560, 586–88 (9th

Cir.), supplemented sub nom. Beardslee v. Brown, 393 F.3d 1032 (9th Cir. 2004).

1 Even the Third Circuit’s seemingly unambiguous command in Lesko has become somewhat muddled,

as evidenced by the panel’s decision here and others. See, e.g., United States v. Smith, 553 F. App’x

130, 134 (3d Cir. 2014) (unpublished) (“The Mitchell Court expressed no opinion as to whether a

sentencing court may infer a lack of remorse from a defendant’s silence … and [the defendant] cites no

binding authority holding that a sentencing court is barred from doing so where, as here, there is no

reason to believe that unexpressed remorse could be used for an additional incriminatory purpose.”).

14

The Sixth Circuit has applied the same rule at non-capital sentencings, holding

“while courts may consider the presence or absence of remorse at sentencing, they

may not cloak an impermissible sentencing factor in a permissible one or punish

defendants for exercising their Fifth Amendment rights against self-incrimination.”

United States v. Whitson, 77 F.4th 452, 457 (6th Cir. 2023) (cleaned up). In Whitson,

the court ordered a resentencing based on the sentencing court’s insistence that the

defendant would not be deemed adequately remorseful unless he admitted the

underlying criminal conduct. Id. It concluded that using “a defendant’s refusal to selfincriminate to discount his propounded evidence of his rehabilitation and remorse,

and then imposing a longer sentence on that basis, must constitute impermissible

punishment under our precedent and under the Supreme Court’s precedent.” Id. at

459.

The Fourth Circuit has also signaled its agreement with the Third and Sixth

Circuits. See Caro, 597 F.3d 608. It explained in Caro that “Estelle and Mitchell

together suggest that the Fifth Amendment may well prohibit considering a

defendant’s silence regarding the non-statutory aggravating factor of lack of

remorse.” Id. at 630. The court did not need to resolve the question because it found

any such error harmless. Id. But it warned that remorselessness inferences are “in

tension with Estelle,” while acknowledging that its “sister circuits are divided over

whether the Fifth Amendment prohibits using silence to show lack of remorse

15

inviting a harsher sentencing.” Id. at 629 (comparing United States v. Mikos, 539 F.3d

706, 718 (7th Cir. 2008), with Lesko, 925 F.2d 1544–45; United States v. Roman, 371

F. Supp. 2d 36, 50 (D.P.R. 2005); United States v. Cooper, 91 F. Supp. 2d 90, 112–13

(D.D.C. 2000)); see also United States v. Runyon, 707 F.3d 475, 510 (4th Cir. 2013)

(again noting the “deep circuit split that has developed over the matter”). 2

The Second Circuit has likewise rejected remorselessness inferences from

silence at sentencing, at least in some contexts. See, e.g., United States v. Sterkaj, 138

F.4th 95 (2d Cir. 2025). In Sterkaj, the court rejected the government’s invitation to

overturn existing precedent that judges cannot increase a sentence based on a failure

to cooperate. The court explained, inter alia, that the district court “was not permitted

… to infer a lack of remorse, warranting an upward variance, from the ambiguous

silence of Sterkaj’s unexplained lack of cooperation.” Id. at 102. But the court has also

recently, in an unpublished opinion, stated that: “Whether a defendant’s silence can

bear upon a district court’s determination of lack of remorse consistent with the Fifth

Amendment is an open question.” United States v. Fruge, 2025 WL 1288450, at *1 (2d

Cir. May 5, 2025) (unpublished) (citation omitted).

2 Some circuits have indicated agreement, though not always clearly. See, e.g., United States v. Stanley,

739 F.3d 633, 652 (11th Cir. 2014) (“During a sentencing, a court may not weigh the exercise of Fifth

Amendment rights against the defendant. … But a court may take into account a defendant’s freely

offered statements indicating a lack of remorse.” (cleaned up)). While others have avoided the question

without telegraphing their views. See, e.g., United States v. Sepulveda, 64 F.4th 700, 711 (5th Cir.

2023).

16

The Seventh Circuit has declined to extend Mitchell and Griffin to

remorselessness inferences. See Burr, 546 F.3d at 832. In Burr, the court rejected a

Fifth Amendment claim based on the sentencing court’s statement that the silent

defendant had not shown any remorse. Id. at 830, 832. The court explained, “silence

can be consistent not only with exercising one’s constitutional right, but also with a

lack of remorse.” Id. at 832. But not all judges on the Seventh Circuit agree. Judge

Posner has explained: “Mere silence is not enough to demonstrate lack of remorse. …

Such a failure might defeat the defendant’s effort to plead remorse as a mitigating

factor; but the absence of a mitigating factor cannot automatically be converted to the

presence of an aggravating one.” Mikos, 539 F.3d 723 (Posner, J., concurring in part).

This Court has grouped the Tenth Circuit with the Seventh on this issue, citing its

statement that “circuit courts have readily confined Mitchell to its stated holding, and

have allowed sentencing courts to rely on, or draw inferences from, a defendant’s

exercise of his Fifth Amendment rights for purposes other than determining the facts

of the offense of conviction.” See Woodall, 572 U.S. at 422 n.3 (citing Lee v. Crouse,

451 F.3d 598, 605 n.3 (10th Cir. 2006)); see also United States v. Dura-Munez, 539 F.

App’x 407, 408 (5th Cir. 2013) (unpublished) (rejecting claim that sentencing court

improperly equated silence with a lack of remorse, noting “Mitchell’s holding was

limited to the drawing of adverse inferences from a defendant’s silence with regard

to details of the offense of conviction …”).

17

This question has similarly divided state courts. Several states explicitly

prohibit, under the U.S. and state constitutions, remorselessness inferences from

silence at sentencing. See, e.g., People v. Matute, 168 N.E.3d 673, 685 (Ill. Ct. App.

2020); People v. Ervin, 990 P.2d 506, 537 (Cal. 2000). A larger number of state courts

have a recognized a qualified rule, prohibiting such inferences in cases where a

defendant maintains his or her innocence. See, e.g., State v. Brunson, 218 N.E.3d 765,

787 (Ohio 2022); State v. Burgess, 943 A.2d 727, 736 (N.H. 2008); State v. Kamana‘o,

82 P.3d 401, 402 (Haw. 2003); State v. Shreves, 60 P.3d 991, 996 (Mont. 2002); People

v. Young, 987 P.2d 889, 894–95 (Colo. App. 1999); Brake v. State, 939 P.2d 1029, 1033

(Nev. 1997); State v. Hardwick, 905 P.2d 1384, 1391 (Ariz. Ct. App. 1995); State v.

Williams, 389 S.E.2d 830, 833–34 (N.C. Ct. App. 1990). Still, other states have

refused to recognize any such Fifth Amendment prohibition on remorselessness

inferences. See, e.g., State v. Muscari, 807 A.2d 407, 416–17 (Vt. 2002); State v. Clegg,

635 N.W.2d 578, 580-81 (S.D. 2001); State v. Barnes, 637 A.2d 398, 402–03 (Conn.

App. Ct. 1994).

Lower courts are unquestionably divided on the question left open in Mitchell,

though the “split is not a clean one.” Paul Peterson, A Decade Redrawn: Presentence

Boundaries of the Privilege Against Compelled Self-Incrimination Since Mitchell v.

U.S., 25 Fed. Sent. R. 81, 82 (2012). That article characterizes the split somewhat

differently than Petitioner does here—which is to say, the law is so unclear that even

18

defining the contours of the circuit split is difficult. Indeed, the caselaw is marked

more by inconsistencies and reticence to wade into this area than by courts’

willingness to provide defendants clear guidance on the law. And what guidance has

been provided grows increasingly confusing and contradictory. It is past time for this

Court to intervene.

B. The Decision Below is Wrong.

The panel’s decision below was grievously wrong. Although the circuit split

described above is complicated, the solution to that split is not, and the panel’s

decision illustrates the point. A straightforward application of Griffin, Estelle, and

Mitchell demonstrates that sentencing judges may not infer remorselessness from

silence, or otherwise compel their speech at sentencing.

1. Inferring remorselessness from silence at sentencing violates the

Fifth Amendment principles in Griffin, Estelle, and Mitchell.

Adverse inferences of remorselessness at sentencing from mere silence clearly

offend the Fifth Amendment under the reasoning of Griffin, Estelle, and Mitchell. The

Constitution guarantees a criminal defendant “the right ‘to remain silent unless he

chooses to speak in the unfettered exercise of his own will, and to suffer no penalty

for such silence.’” Estelle, 451 U.S. at 468 (quoting Malloy v. Hogan, 378 U.S. 1, 8

(1964)). Exercising the right to remain silent “entails failure to speak words of

remorse,” so penalizing a defendant for “failure to articulate remorse burdens his

Fifth Amendment privilege against self-incrimination.” Caro, 597 F.3d at 629 n. 19.

19

“It is an ancient principle of the law of evidence that a witness shall not be compelled,

in any proceeding, to make disclosures or to give testimony which will tend to

criminate him or subject him to fines, penalties or forfeitures.” Counselman v.

Hitchcock, 142 U.S. 547, 563–64 (1892), overruled on other grounds by Kastigar v.

United States, 406 U.S. 441 (1972). A finding of remorselessness at sentencing

unquestionably subjects a defendant to penalties, and so falls within the right.

Indeed, this Court has already held that a remorselessness finding cannot be

based on testimony obtained in violation of the Fifth Amendment. See Estelle, 451

U.S. 454. In Estelle, the Court found the Fifth Amendment was violated when a

defendant submitted to a psychiatric examination without being warned that he had

a right to remain silent and that his statements could be used against him at a capital

sentencing. Id. at 468–69. The improperly compelled testimony had led the

psychiatrist to conclude the defendant was dangerous, and he “placed particular

emphasis on what he considered to be respondent’s lack of remorse.” Id. at 464. The

“Fifth Amendment privilege, therefore, [was] directly involved … because the State

used as evidence against respondent the substance of his disclosures during the

pretrial psychiatric examination.” Id. at 464–65. The same is true here, even if

remorselessness was found based on an improper adverse inference from silence

rather than an improperly compelled statement by a defendant. Cf. Woodall, 572 U.S.

at 430 (Breyer, J., dissenting) (“Mitchell would have had to overrule—or at least

20

substantially limit—Estelle to create an exception for matters unrelated to the

circumstances and details of the crime …”).

A contrary rule, “[a]pplying Griffin only to adverse inferences in ‘determining

the facts of the offense’ creates an arbitrary line that is neither demanded by the text

of the privilege nor by the purpose served by Griffin.” Maclin at 96. It “makes no sense

if the Court is interested in adopting neutral principles for its Fifth Amendment

jurisprudence.” Id. Limiting Mitchell’s rule in this way would sweep “under the rug”

the “bulk of what most sentencing is about.” Mitchell, 526 U.S. at 340 (Scalia, J.,

dissenting) (emphasis in original). There “is no logical basis for drawing such a line

within the sentencing phase,” and its “only sensible feature is that it will almost

always be unenforceable, since it will ordinarily be impossible to tell whether the

sentencer has used the silence for either purpose or for neither.” Id.; see also Woodall,

572 U.S. at 430 (Breyer, J., dissenting) (“as there is no basis to distinguish between

the [guilt and penalty phases] for Fifth Amendment purposes, there is no basis for

varying either the application or the content of the Fifth Amendment privilege in the

two contexts”). Again, “Estelle itself involved compelled statements introduced to

establish … [a] fact often unrelated to the circumstances or details of a defendant’s

crime.” Id. at 431 (Breyer, J., dissenting).

A rule limited to facts of the offense would also circuitously tether the Fifth

Amendment protection only to matters of guilt at a criminal trial. But the Fifth

21

Amendment itself protects against self-incrimination in “any criminal case,” which

indisputably includes the sentencing. See Fountain at 289–90. That was, in fact, the

central holding of Estelle, 451 U.S. at 462–63 (“We can discern no basis to distinguish

between the guilt and penalty phases …”), and Mitchell, 526 U.S. at 328 (a

“sentencing hearing is part of the criminal case—the explicit concern of the selfincrimination privilege”). It would defeat those holdings to say the Fifth Amendment

privilege extends to sentencing, but only insofar as factual issues of guilt are

concerned. There is no mention of guilt or trial in the text of the Fifth Amendment

itself. And, historically, the criminal trial and sentencing “were essentially based on

the same evidence, since they were more or less the same proceeding. Any evidentiary

prohibitions (including the self-incrimination clause) at trial would, as a general

matter, carry over to the sentencing phase.” Fountain at 291. At the Founding, the

judge typically based “decisions regarding sentencing on the evidence submitted in

court,” and there was no procedural difference “between the way elements of the

offense and sentencing factors were established in court.” Id. at 292 (cleaned up).

The rule from Griffin and Mitchell must, at the very least, foreclose increasing

a sentence based on a remorselessness inference from silence. There is an appreciable

difference between an aggravating “lack of remorse” finding and “acceptance of

responsibility for purposes of the downward adjustment”—the two examples the

Mitchell Court declined to address. See 526 U.S. at 316. The latter is an exercise of

22

leniency, for which the defense bears the burden, while the former is an additional

penalty, the burden for which falls to the government. Cf. Fountain at 272 (2018) (“A

finding of remorselessness increases a defendant’s penalty during the course of a

criminal case.”). “Mitchell made clear that a court’s decision to increase a sentence

based upon the defendant’s exercise of his or her Fifth Amendment privileges is an

unconstitutional ‘penalty.’” United States v. Warren, 338 F.3d 258, 264 (3d Cir. 2003)

(emphasis in original). Courts are permitted to deny leniency based on an exercised

right, but they cannot impose an additional penalty. See United States v. Whitten,

610 F.3d 168, 195 (2d Cir. 2010). “The Government retains the burden of proving facts

relevant to the crime at the sentencing phase and cannot enlist the defendant in this

process at the expense of the self-incrimination privilege.” Mitchell, 526 U.S. at 330.

The government likewise bears the burden to show remorselessness for the purpose

of imposing a higher sentence, so the same rule must apply. 3 It is an “easy case” to

extend Mitchell to preclude establishing aggravating findings like remorselessness

from silence. Maclin at 96.

3 The district court here confused these burdens, further demonstrating the risks of drawing adverse

inferences from a defendant’s silence. See Pet. App. 19a (when imposing upward variance, district

court insisted Marsh “has not accepted any sort of remorse. He has not convinced the Court that he’s

even sorry for what he’s done.”). Even more confusingly, the court found Marsh met his burden for an

acceptance of responsibility reduction.

23

2. The Fifth Amendment violation is even clearer where, as here, the

district court compels a sentencing allocution.

In this case, the district court went beyond inferring remorselessness from

Marsh’s silence—it compelled him to allocute at his sentencing. After commenting at

length on Marsh’s purported lack of remorse, the court faulted Marsh for not

submitting “anything to the Court” to show remorse, and commented, “I don’t even

know if he intends to speak today. I guess we’ll find out to see how sorry he is and see

what he wants to say today[.]” Pet. App. 12a. This tactic was successful. Marsh took

the bait and allocuted, and the court imposed an even higher sentence, based on its

view that his allocution was “disingenuous … at best.” Pet. App. 15a.

Even critics of Griffin and Mitchell would have to concede the violation here.

Cf. Carter, 450 U.S. at 306 (Powell, J., concurring) (noting of the Griffin adverse

inference rule, a “defendant who chooses not to testify hardly can claim that he was

compelled to testify”). The no-adverse-inference rule is a necessary prophylactic to

protect the defendant from compelled self-incrimination—it ensures that a defendant

is not compelled to testify for fear that their silence will be weaponized against them.

But compelled testimony itself is the express ill prohibited by the text of the Fifth

Amendment. The district court here went beyond an adverse inference to outright

compulsion of speech.

This is the rare record that clearly shows a judge both drew an explicit adverse

inference from a defendant’s silence and the commentary compelled the defendant to

24

speak. It, therefore, unmistakably demonstrates the underlying rationale of Griffin’s

rule. Justice Scalia offered in his Mitchell dissent that, “it would seem to me that the

threat of an adverse inference does not ‘compel’ anyone to testify. … I imagine that

in most instances, a guilty defendant would choose to remain silent despite the

adverse inference, on the theory that it would do him less damage than his own crossexamined testimony.” 526 U.S. at 331 (Scalia, J., dissenting). Marsh’s eventual

allocution here should dispel any such lingering skepticism. Plainly, when faced with

a concrete threat that their silence will be used against them, defendants must face

down the “cruel trilemma,” Carter, 450 U.S. at 299–300, and sometimes must speak.

The court’s repeated comments that it found Marsh’s silence showed remorselessness,

coupled with its baiting language, had the obvious effect of inducing Marsh to

allocute. As with the adverse inference itself, this compulsion violated the Fifth

Amendment.

C. The Question Presented Is Critically Important.

The question presented here is also critically important. In a system where

virtually all defendants plead guilty, 4 carefully safeguarding constitutional

protections during the sentencing phase is of paramount importance. That means

assuring the “tens of thousands” of criminal defendants sentenced every year, see

4 In Fiscal Year 2024, nearly 62,000 federal criminal defendants were sentenced, roughly 97% of them

after pleading guilty. U.S. Sent. Comm’n, 2024 Sourcebook of Federal Sentencing Statistics, at 30

(2025).

25

Molina-Martinez v. United States, 578 U.S. 189, 192 (2016), that they will not be

penalized for remaining silent. The remorselessness question was important enough

to be identified and tabled for future resolution in Mitchell—now is the time to answer

it.

In the vast majority of cases, where a defendant pleads guilty, the sentencing

is the “precise stage” where the Fifth Amendment privilege is “most important.”

Mitchell, 526 U.S. at 327. The “rule against adverse inferences is a vital instrument

for teaching that the question in a criminal case is not whether the defendant

committed the acts of which he is accused. The question is whether the Government

has carried its burden to prove its allegations while respecting the defendant’s

individual rights.” Id. at 330. An inference of remorselessness from silence

exemplifies this critical issue—it offends the Constitution and confounds the

sentencing burdens by forcing the defendant to speak or else risk an aggravating

finding and higher sentence. Errors like that, which increase prison sentences,

adversely impact the public perception of the integrity of the system, because “any

amount of actual jail time is significant and has exceptionally severe consequences

for the incarcerated individual and for society which bears the direct and indirect

costs of incarceration.” Rosales-Mireles v. United States, 585 U.S. 129, 139 (2018)

(cleaned up).

26

In addition to being unconstitutional, sentencing courts’ attempts to discern

remorselessness from silence are utterly misguided. See Fountain at 296–97. In “most

circumstances silence is so ambiguous that it is of little probative force,” and often

reflects other factors other than a lack of remorse. Jules Epstein, Silence: Insolubly

Ambiguous and Deadly: The Constitutional, Evidentiary and Moral Reasons for

Excluding “Lack of Remorse” Testimony and Argument in Capital Sentencing

Proceedings, 14 Temp. Pol. & Civ. Rts. L. Rev. 45, 77 (2004) (quoting United States v.

Hale, 422 U.S. 171, 176 (1975)). Silence at sentencing may stem from “abject fright

or shock,” “actual innocence … and the desire to seek appellate review,” an “inability

to admit guilt before one’s own family or friends,” or “youth or emotional deficits.” Id.

at 78. Some “socially disadvantaged defendants” also remain silent because they are

“ill-suited to address the bench in a way that judges are likely to embrace,” and the

“[s]peech patterns that defendants use to express remorse might not sound

remorseful to a judge.” Alexandra Natapoff, Speechless: The Silencing of Criminal

Defendants, 80 N.Y.U. L. Rev. 1449, 1465–66 (2005). Indeed, under those

circumstances, defense attorneys are “likely to pressure their clients not to speak,”

which may signal to defendants “that the system does not value and may even punish

their remorse.” Id. at 1466, 1495.

To be sure, remorse and remorselessness can be important considerations at

sentencing. But these considerations should be informed by actual probative

27

evidence, like “statements (such as bragging about the murder), gestures, laughter

as the murder was described or a grieving relative testified, or facial expressions that

indicated that the defendant had indeed no regret about having committed the

murder.” Mikos, 539 F.3d at 723 (Posner, J., concurring in part). Judges should not

engage in the dubious task of equating silence with a lack of remorse, especially

where that silence is understandable and often reflects other circumstances.

The Court should intervene because the practice is not only unconstitutional,

but ill-advised, dangerous, and ubiquitous throughout the criminal adjudicatory

system. The question presented is critically important.

D. This Case Is an Ideal Vehicle for Addressing the Question Presented.

Petitioner’s case presents an ideal vehicle for considering this issue, because of

the clarity with which the error manifested. The district court here was uncommonly

candid about its inference of remorselessness from Petitioner’s mere silence. Its

statements were, likewise, unmistakable attempts to induce his allocution. And it left

no doubt that Petitioner received a higher sentence based on the court’s inferences

from his silence and from his compelled allocution. Sometimes the “line between the

legitimate and the illegitimate … is a fine one,” and it is difficult to discern whether

a court is “punishing a defendant for remaining silent[.]” Burr, 546 F.3d at 832. But

this is not one of those difficult cases.

28

This case is an ideal vehicle for another, perhaps less obvious, reason. Because

it involves undisputedly terrible charges, the constitutional questions raised are

particularly important. The Constitution is the most steadfast bulwark between

criminal defendants and public (or even judicial) outrage and passion. Courts “must

be careful to safeguard the rights that our Constitution protects, even when (and

perhaps especially when) evaluating errors made in cases stemming from a terrible

crime.” Michaels v. Davis, 144 S. Ct. 914, 916 (2024) (Jackson, J., dissenting from

denial of cert.). This case did not live up to those ideals. The case was effectively

resolved—Marsh was set to serve 30 years in state prison for his crime, and the

parties agreed he should not receive additional time in federal prison. But the district

court, perhaps understandably enflamed by the disturbing details of the offense,

defied principles of party presentation and sought reasons to punish Marsh more

harshly. It recalculated the Guidelines, ignored undisputed mental health evidence,

and then violated clear Fifth Amendment principles by expressing its unambiguous

intention to increase Marsh’s sentence based on its conclusion that Marsh’s silence

was equivalent to a lack of remorse. And, on cue, Marsh—in the face of the court’s

expressed intention to violate his right to remain silent—was compelled to allocute.

The horrible nature of the crime likely motivated the court’s improprieties, and these

improprieties are uniquely clear. Together, these factors militate in favor of this

Court’s intervention.

29

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

s/ Timothy M. Shepherd

Assistant Federal Public Defender

Counsel of Record

K. ANTHONY THOMAS

OFFICE OF THE FEDERAL PUBLIC DEFENDER

22 South Clinton Avenue

Station Plaza #4, 4th Floor

Trenton, New Jersey 08609

(609) 690-0414

timothy_shepherd@fd.org

November 10, 2025