UNITED STATES of America v. Gathon Dudley SHANNON, Appellant.
No. 13-2389.
United States Court of Appeals, Third Circuit.
Argued July 8, 2014. Filed: Sept. 8, 2014.
766 F.3d 346
Paul D. Boas, Esq., [Argued], Pitts-
Before: RENDELL, CHAGARES, and JORDAN, Circuit Judges.
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 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, 87 S.Ct. 824, 17 L.Ed.2d 705 (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 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
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 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.
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
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 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 Distrib-
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 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 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
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.
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
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
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 Wainwright v. Greenfield, 474 U.S. 284, 290, 106 S.Ct. 634, 88 L.Ed.2d 623 (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 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). 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).
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, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). To sustain a conviction, the government must “prove beyond a reasonable doubt that the error complained of did
A. Objection and Preservation for Appeal12
As a threshold matter, we must first determine whether, under
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 sidebar, 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?
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 de-
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 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
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:
[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.)
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
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.)
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). 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, 96 S.Ct. 2240. 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 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.
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, 87 S.Ct. 824. 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 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, 87 S.Ct. 824, but the government has not done so, and the verdict cannot stand.
III. CONCLUSION
For the foregoing reasons, we will vacate the District Court‘s judgment and remand for a new trial consistent with this opinion.
KENT A. JORDAN
UNITED STATES CIRCUIT JUDGE