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United States v. Gathon Shannon, 3rd Cir. (2014)
United States v. Gathon Shannon, 3rd Cir. (2014)
BACKGROUND
Factual History
The Trial
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DISCUSSION8
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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 defendants
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 defendants post-Miranda silence.
Govt of the V.I. v. Davis, 561 F.3d 159, 165 (3d Cir. 2009).
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A. Yes, sir.
[Defense counsel]: I renew my objection, Your
Honor.
(Id.)
Defense counsels 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
governments questioning created at trial, and despite the
specific and repeated objections from Shannons 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. (Govts 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 Shannons
objection because frankly Doyle wasnt mentioned,
Mirandas 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 governments questions about
a defendants post-arrest silence, as one of our sister circuits
has recommended.14 (See Govts Br. at 22 (In Shannons
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C.
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III.
CONCLUSION
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