DALZELL, District Judge.
We here address the question of whether silence says anything, particularly in a federal criminal prosecution. Almost five hundred years ago, Sir Thomas More sought to use silence as a shield, wrapping himself in the maxim "silence gives consent"
At a far less exalted plane, the Government here sought to make Terrell Hampton's silence a sword against him. As this is a subject that has received relatively little judicial attention, we turn ours to it at some length.
Specifically, the Superseding Indictment in this case charges Hampton with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At defendant's first trial the jury could not reach a verdict and, finding manifest necessity, we declared a mistrial.
Before the second trial began, the Government filed a motion in limine to admit evidence of defendant's choice not to answer
After a brief colloquy, we denied the Government's motion in limine under Fed. R.Evid. 403 explaining that a memorandum would follow to fully explain our reasoning.
On May 12, 2011, Secret Service agents conducted a warranted search of a house on Delancey Street in Philadelphia, Pennsylvania ("the House"). Hampton was inside the House at the time of the search, but the Government alleged — and it has never been disputed — that this House was not his primary residence. The Government contended that when the agents entered the House to conduct their search that day, they saw Hampton on the stairs. When the agents searched the dwelling — and, more specifically, the upstairs middle bedroom — they recovered, from under the mattress in that room, the semi-automatic firearm charged in the Superseding Indictment.
In connection with the investigation that led to the search warrant's execution, agents obtained a photograph of Hampton from his Facebook page ("Facebook photograph" or "photograph"). That photograph allegedly shows Hampton with an object in his belt that the Government contends in the Superseding Indictment is the same firearm recovered on the day of the search.
Hampton was arrested at the House. After being taken to the Secret Service's offices in Center City, Philadelphia, Hampton signed a waiver of his Miranda rights. The subsequent interrogation took place in two parts. The first portion focused on the felon-in-possession offense before us. Once that part of the interview concluded, another Secret Service agent questioned Hampton about an alleged house-theft scheme that gave rise to the search of the House, but is unrelated to this felon-in-possession case.
During the course of the first part of the interview — the only portion of the interrogation relevant to this trial — Hampton was asked about the gun recovered at the House. He did not answer such questions. The agents then confronted Hampton with the Facebook photograph that showed him with an object in his belt that the Government asserts is a firearm — indeed, the same firearm recovered from the House. When asked about the object in the Facebook photograph, Hampton again remained silent. But when the agents asked him a more general question about the photograph, Hampton admitted it was he in the photograph.
The Government's motion in limine sought to elicit testimony in its case-in-chief that was expected to be the same, or similar to, an agent's testimony from the first trial.
The Government's motion was doubtless prompted by defense counsel's objection to the Government's references to the supposed significance of those silences in closing arguments at the first trial. As we shared the defense's concerns under the recent teaching of our Court of Appeals in United States v. Waller, 654 F.3d 430 (3d Cir.2011), we sustained the objection and instructed the jury to disregard the offending references.
Though the Government described the evidence at issue in its motion as a "fail[ure] to respond to questions"
When the parties appeared in Chambers to discuss the motion in limine before the second trial commenced, we initiated the following exchange:
2-1-12 Draft Tr. 4-5.
Thus, put another way, the Government sought admission of Hampton's silence because it contended a reasonable jury could and should be allowed to infer an inconsistency from defendant's post-arrest, post-Miranda silence as compared against his trial counsel's argument that the Government had not met its burden of proof on an essential element of the offense.
We cannot agree that the two things the Government compared are inconsistent. The cases that the Government cited in support of its "inconsistency" theory arose
In reality, the Government's argument distills to the claim that defendant's silence was an "adoptive admission."
Now that we have identified the type of evidence the Government sought to admit and reference in closing argument, we consider Hampton's contentions that the admission of these adoptive admissions would: (1) use his silence against him under the due process rationale in Doyle and its progeny, (2) violate his Fifth Amendment privilege against self-incrimination, and (3) shift the burden of proof by implying defendant had the opportunity to explain himself but failed, thus violating due process.
But these arguments do not persuade. First, Hampton's "selective silence" may
Third, though Hampton's due process burden-shifting argument has first blush appeal, it will not withstand careful scrutiny.
At most, our Circuit's Model Instruction allows the jury to reach a permissive inference (not a presumption) that defendant acquiesced to these statements of fact. See Sandstrom v. Montana, 442 U.S. 510, 515-17, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). This permissive inference of an adoptive admission is in accord with Hampton's constitutional due process trial rights because it does not (1) conflict with the presumption of innocence, nor (2) alter the Government's burden of production on each essential element of the offense. The factfinding function of the jury is preserved because the jury is obliged to consider whether [defendant]'s silence was an admission of the truth of the statement[,] and thus a far cry from a conclusive presumption against defendant. See id. at 523, 99 S.Ct. 2450. Furthermore, inviting the jury to entertain the question of whether an adoptive admission arose does not impermissibly shift the burden to the defendant because, as the language we have canvassed shows, the defendant is never called upon to adduce or refute any facts. The onus is thus on the Government alone to establish an adoptive admission.
This brings us at last to our core inquiry: did the Government carry its burden of proof on the adoptive admission it sought to enter into evidence? Has the Government here convinced us that a reasonable jury could infer that "sufficient foundational facts [have been alleged] ... that the defendant heard, understood, and acquiesced in the statement [offered as an adoptive admission,]" and "whether the statement was such that, under the circumstances, an innocent defendant would normally be induced to respond"? Jinadu, 98 F.3d at 244.
Since the agents' interrogation of Hampton took place in a small room and involved, at most, four individuals (including the defendant), a reasonable jury could indeed reasonably infer that Hampton heard and understood the questions that he left unanswered about the firearm recovered at the House and the object alleged to be a firearm in the photograph.
But it is far less clear if a jury could reasonably infer anything from Hampton's silence in the face of the unanswered statements. This inquiry distills to a determination of the probative value of Hampton's silence.
Id. (emphasis added). Judge Hastie's reasoning holds true regardless of whether a defendant has or has not been Mirandized or waived his Miranda rights because the underlying circumstances remain that "a prisoner is likely to be wary and cautious.... [and] not such as to evoke a spontaneous response to an accusatory statement." Id. Judge Hastie's comment is congruent with Justice Marshall's reasoning for the Supreme Court in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975),
While, as Judge Hastie notes, it may be "difficult" in particular cases to justify the tacit admission rule, we are obliged to apply it here as an adoptive admission. During his interrogation, Hampton neither confirmed nor denied "know[ing] anything about the gun that was found in the morning during the search warrants[,]" 12-1-11 Tr. 191, or having "any knowledge of that [item in his waistband of the Facebook photograph that was pointed at by agents and alleged to be a gun by them.]" Id. 192. His only articulated comment was his confirmation of his identity in a photograph that the agents had already procured from his Facebook page after sending him a "friend" request using an agency account.
Goldman and Agee found adequate probative value of silence in light of Hale's silence-skeptical evidentiary rule. In Goldman, the First Circuit held that "[w]hat [defendant] said [during the "exculpatory story" delivered during his interrogation following the waiver of his Miranda rights] provided a context that enhanced the probative value of his silent
To be sure, Hale is not directly applicable to the facts here since it involved the introduction of defendant's silence for impeachment purposes following his invocation of his right to remain silent. We nevertheless take the silence-skeptical statements in Hale, Goldman and Agee to counsel hesitation regarding any probative value of Hampton's selective silence. Considering Hampton's silence in the context of his one and only statement to the agents, his failure to answer any questions about the firearm recovered at the House is of little probative value to a claim of acquiescence since the firearm at the heart of the questioning — and of this prosecution — was not recovered from Hampton's person but from under a bed in a house that was not his primary residence. Thus, in the setting of Hampton's interrogation — such as it was — it is likely that Hampton may have had no idea that the firearm was in the residence. Thus, an adverse inference would be too speculative to pass Rule 403 muster.
To be sure, Hampton's voluntary identification of himself in the photograph provides some probative value for the claim that he adopted the contention that the object in the photograph was a firearm. His failure to answer questions about the object alleged to be a firearm could reasonably be construed as disingenuous since he would have had first-hand knowledge of what was in his belt on his waist. But the probative heft of this silence is offset since Hampton never offered an exculpatory story during his interrogation or at trial from which any inconsistency or ulterior motive could be inferred. In addition, Hampton's sole statement pertinent to the felon in possession charge did not address facts relevant to the essential elements of the felon-in-possession case — namely the possession of the recovered firearm or the particulars of the gun within the statutory meaning of a firearm.
It also warrants reiteration to note that Hampton's silence about the felon-in-possession case under questioning here occurred during a custodial interrogation. It was precisely such a circumstance that both Justice Marshall and Judge Hastie reasoned would lead an accused "to be wary and cautious" with his answers and would likely minimize the potential for a spontaneous response to an accusatory statement given the inherent power imbalance between the accused and the accuser. See Hale, 422 U.S. at 176-77, 95 S.Ct. 2133; Brierly, 387 F.2d at 600.
Given the radical power imbalance in play during a custodial interview, it is also unclear whether an innocent defendant would normally be induced to speak up or remain "wary and cautious." This is why the jurisprudence in this area understandably avoids categorical rules and instead approaches those questions with a hefty skepticism toward the Government.
Thus, even if the Government's proffer of the adoptive admissions satisfied its own threshold test for admissibility, it does not necessarily follow that it survives a Rule
Drawing again on the teachings of Hale and Brierly, we note that silence has great potential for unfair prejudice because the jury — untutored in Justice Marshall's and Judge Hastie's healthy skepticism — is likely to draw a strong negative inference from a defendant's failure to immediately tell the police what happened. Johnson, 302 F.3d at 146 (quoting Hale, 422 U.S. at 180, 95 S.Ct. 2133). This potential for unfair prejudice is especially grave here because Hampton never provided a contradictory statement — or, indeed, any exculpatory statement — regarding evidence pertinent to his felon in possession case. As a result, Hampton's "story," in a sense, has been consistent over the course of this litigation because he never advanced one. He has left it to the Government to carry its burden of proving its case against him with the evidence that it collected from the House and through its online investigation.
Though we tell jurors that they are to follow our instructions and accept with no adverse inference defendant's right not to testify at trial, we are nevertheless concerned that allowing the Government to introduce evidence and comment on defendant's silence without anything to measure that silence against invites a degree of confusion in the minds of the jurors that an instruction is unlikely to remedy. See Bruton v. United States, 391 U.S. 123, 135-36, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ("[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored."). Here, the implications of defendant's minimally probative silence would have been powerfully incriminating because of its alluring logical appeal to ordinary, innocent people — i.e., jurors — who naturally would be unaware of the reality of custodial wariness and caution that Hale and Brierly identify.
In the end, we heed the warnings of Justice Marshall and Judge Hastie and hold that the danger of unfair prejudice to Hampton substantially outweighed the de minimis probative value of his silence to establish acquiescence. We therefore denied the Government's motion to admit and comment on evidence of Hampton's silence in its case-in-chief and in closing argument.
AND NOW, this 8th day of February, 2012, upon consideration of the Government's motion in limine (docket entry # 95), defendant's memorandum in opposition thereto, and the Government's supplemental memorandum in support of its motion, and upon the analysis set forth in the accompanying Memorandum, it is hereby
12-1-2011 Tr. 189-92.
In addition, the commentary accompanying the Instruction 4.34 notes that "[a]n instruction on this topic should be given only rarely and always with great caution. In criminal cases, courts must carefully assess the admissibility of a statement that would otherwise be hearsay on the basis that the defendant adopted the statement by silence under Federal Rules of Evidence, Rule 801(d)(2)(B). In some instances, the defendant's silence in the face of accusation is admissible" (emphasis added). As noted above, this is one of those instances where a defendant's silence is admissible because he waived his Miranda rights, was selectively silent, and failed to re-invoke his rights. We take note of the Commentary's advice that Instruction 4.34 "should be given only rarely and always with great caution" in our analysis here.
