Argued May 20, 2015
On Appeal fro the District Court of the Virgin Islands. District Court No. 3-14-cr-00007-001. District Judge: The Honorable Curtis V. Gómez.
Nelson L. Jones, Ronald Sharpe, Office of United States Attorney, United States Courthouse, St. Thomas, USVI, Counsel for the Appellee.
Alvin E. Entin, Entin & Della Fera, Fort Lauderdale, FL, Counsel for the Appellant.
McKEE, Chief Judge, SMITH and SCIRICA, Circuit Judges.
Smith, Circuit Judge.
Defendant Jace Edwards was convicted of attempted possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, but was acquitted of an accompanying conspiracy charge under § 846. Edwards argues that the Government violated his Fifth Amendment rights by repeatedly referring to Edwards's post-arrest, post- Miranda silence in the Government's case-in-chief and during closing arguments. We agree. Because the error was not harmless, we will vacate Edwards's conviction and remand for a new trial consistent with this opinion.
In the early morning of October 23, 2011, law enforcement arrested Edwards while he was in possession of a suitcase containing several packages of apparent cocaine. Edwards had acquired the suitcase from a motel room occupied by Thomas Bruce. Bruce had been arrested the previous day in Atlanta's Hartsfield-Jackson Airport after arriving from the Virgin Islands with several packages of cocaine stashed in his carry-on bag. Upon his arrest, Bruce agreed to participate in a controlled delivery. At law enforcement's direction, Bruce informed co-conspirator Michael Samuels by phone that Bruce would be waiting in a nearby motel. Samuels told Bruce to expect an individual by the name of " Mr. Dred."
Soon thereafter, Edwards arrived at Bruce's motel room. Testifying at trial pursuant to a plea deal, Bruce claimed that Edwards identified himself as Dred. Edwards stated that he was there for six kilograms of cocaine. Bruce further testified that Edwards spoke with Samuels by phone upon Edwards's arrival. Bruce then showed Edwards six kilograms of apparent cocaine in Bruce's suitcase. Edwards took the suitcase and exited the motel room, whereupon law enforcement arrested him.
Edwards, testifying in his own defense, presented a very different story of what happened in Bruce's motel room. By Edwards's account, he received two calls from an associate asking Edwards to move an individual from the motel to a different hotel. Upon arriving at Bruce's room, Edwards told Bruce that " Dred" had sent him. Edwards did not identify himself as Dred, but on cross examination, Edwards acknowledged that others had referred to him as Dred in the past. Nevertheless, according to Edwards, he had exited the motel room with Bruce's suitcase at Bruce's direction without observing the suitcase's contents and without any other knowledge of the drugs.
After issuing him a Miranda warning, law enforcement questioned Edwards. Agents opened Bruce's suitcase and showed Edwards its contents, but Edwards did not respond. Instead, Edwards invoked his right to remain silent. At trial, the Government repeatedly sought to use Edwards's silence after he was Mirandized as substantive proof of guilt as well as for impeachment purposes. Over Edwards's objection, the Government emphasized in its closing that Edwards had remained silent after law enforcement showed him the contents of the suitcase, suggesting a culpable state of mind. The Government in its brief and at oral argument concedes that this was error under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), but urges that the error was harmless.
" Miranda warnings carry the Government's 'implicit assurance' that an arrestee's invocation of the Fifth Amendment right to remain silent will not later be used against him." Gov't of the V.I. v. Martinez, 620 F.3d 321, 335, 54 V.I. 900 (3d Cir. 2010) (quoting Gov't of the V.I. v. Davis, 561 F.3d 159, 163-64, 51 V.I. 1179 (3d Cir. 2009)). Therefore, it is a violation of the Fifth Amendment and due process " for a prosecutor to cause the jury to draw an impermissible inference of guilt from a defendant's post-arrest silence" after a defendant is Mirandized. Id. (quoting Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir. 1998)); see also United States v. Shannon, 766 F.3d 346, 354 (3d Cir. 2014) (" [T]he rights secured by Doyle apply in equal effect 'to federal prosecutions under the Fifth Amendment.' " (quoting United States v. Agee, 597 F.2d 350, 354 n.11 (3d Cir. 1979))). But Doyle errors can be harmless if the Government " prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Davis, 561 F.3d at 165 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). This analysis requires an examination of " the totality of the circumstances" to determine ...