                                      PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 14-4610
                   _____________

          UNITED STATES OF AMERICA

                          v.

                  VICTOR LOPEZ
                      a/k/a
                   ALEX LOPEZ

                      Victor Lopez,
                              Appellant
                   _____________

    On Appeal from the United States District Court
              for the District of New Jersey
              (D.C. No. 3-13-cr-00155-001)
     District Judge: Honorable Anne E. Thompson
                     ______________

              Argued November 3, 2015
                  ______________

Before: McKEE, Chief Judge, JORDAN and VANASKIE,
                   Circuit Judges
              (Opinion Filed: April 20, 2016)

Steven G. Sanders, Esq. [ARGUED]
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102


Mark E. Coyne, Esq.
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
       Counsel for Appellee, United States of America

Maria K. Pulzetti, Esq.    [ARGUED]
Federal Community Defender Office for the Eastern District
of Pennsylvania
Trial Unit
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106


Brett G. Sweitzer, Esq.
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
       Counsel for Appellant, Victor Lopez




                             2
                    ________________

                        OPINION
                    ________________

VANASKIE, Circuit Judge.

       As established by Doyle v. Ohio, 426 U.S. 610 (1976),
the right to remain silent contains an implicit promise that a
defendant’s post-Miranda silence will not carry adverse
consequences. This promise prohibits a prosecutor from
impeaching a defendant with his or her post-Miranda silence.
Otherwise, a prosecutor could diminish a defendant’s
credibility by suggesting that a defendant’s silence raises
suspicion, thereby burdening the defendant’s right to remain
silent with a costly, unconstitutional penalty. Victor Lopez
argues that he bore this cost when the Government impeached
him with his post-Miranda silence and that this error satisfies
plain error review. We agree. Therefore, we will vacate his
conviction and remand for a new trial.

                              I.

       Victor Lopez was convicted of possessing a firearm as
a convicted felon, in violation of 18 U.S.C. § 922(g). The
sole contested issue at trial was whether Lopez indeed
possessed a gun. In this regard, the jury heard testimony from
Lopez and from the arresting officers, Paul Martinez and
Miguel Ramos. The jurors were faced with the decision of
whether to believe the officers’ testimony that they found a
gun in Lopez’s pocket or to believe Lopez’s testimony that
the police framed him. In light of this conflicting testimony




                              3
and the paucity of other evidence, Lopez’s credibility was
crucial to his defense.

       Officers Martinez and Ramos testified fairly
consistently regarding their encounter with Lopez and an
unidentified man around midnight on September 13, 2012,
though there were some discrepancies in their recollection of
events.     Generally speaking, the officers individually
responded to a possible burglary in progress at an apartment
building, saw Lopez and an unidentified man about to exit the
building, and questioned the men. Eventually, Officer
Martinez asked the men to step outside and put their hands
against the wall. When Officer Martinez searched Lopez, he
saw a gun in Lopez’s pocket. Then, while Officer Martinez
was handcuffing Lopez, the unidentified man left the scene.
The officers then took Lopez to the precinct for booking,
where Lopez gave officers the name of his brother, Alex
Lopez, rather than his own.

        Lopez, on the other hand, testified that the officers
framed him for possessing the gun and that he was only at the
apartment building to take a woman home after their date that
evening. He testified that his friend Pagan had driven him to
the apartment building earlier that night, that he had taken a
woman named Crystal on a date, and that he had taken
Crystal back to her apartment shortly before midnight.
Around midnight, Lopez was nearing the apartment’s exit at
the same time as an unknown, unidentified man. Lopez
testified that he saw police officers outside of the apartment
building. As he exited, he testified that an officer threw him
against the wall. While Lopez was held against the wall,
Lopez said he heard the unidentified man tussling with the
second officer and that it sounded like the unidentified man
ran away. Then, Lopez heard officers say that there was a




                              4
gun, and the officers told Lopez to identify the man who
escaped or else Lopez would be arrested. Lopez testified that
he did not know the other man, that he never had the gun, and
that he had not seen the gun before. He admitted that when
he was taken to the precinct, however, he gave officers his
brother’s name rather than his own. He also testified that he
had prior felony convictions.

       Regarding the gun possession charge, Lopez received
a Miranda warning on the day of his arrest. After receiving
this warning, Lopez did not say that he had been framed by
the police until he testified at trial. During the Government’s
cross-examination, the Government undercut Lopez’s
testimony with the following exchange:

              Q      So essentially you got
                     charged with a gun that
                     you claim you did not
                     possess, correct?
              A      Yes, sir.
              Q      You’re being wrongfully
                     charged, correct?
              A      Yes, sir.
              Q      You’re being framed for
                     this gun, right?
              A      Yes, sir.
              Q      The next day, did you tell
                     anybody       about   what
                     happened?
              A      Tell anyone like who?
              Q      Anybody. Did you call up
                     Crystal and say, “Hey,
                     guess what happened last
                     night?”




                              5
A   No, I did not call Crystal.
Q   Okay. Did you tell your
    friend Pagan who had
    driven you there?
A   No, I did not speak to no
    one.
Q   You didn’t tell anybody
    that you were just framed
    the night before, did you?
A   No, I did not.
Q   How about after the --
A   I got a --
Q   -- next day? At any point,
    from the next day until just
    before this trial, did you
    tell anybody, “I was
    framed          by        the
    police?”
A   Absolutely.
Q   Okay. Who’d you tell?
A   I tell other individuals.
Q   Who?
A   Friends.
Q   Who? Do you have a
    name?
A   They’re not here at the
    moment.
Q   And where are they?
A   They’re at home.
Q   Did you tell them you were
    on trial today?




              6
             A      No, I did not. I don’t have
                    no contact with no one but
                    my family.
             Q      And you -- have you ever
                    made a complaint against a
                    police officer in the past?
             A      No, sir.
             Q      Do you know how easy
                    that would be to file a
                    complaint against a --

                           [Lopez’s Counsel]:
                           Objection to how
                           easy it would be.
                           THE COURT:
                           sustained.

(App. 266-68.)

       Then, in its closing argument, the Government referred
to this exchange and challenged Lopez’s credibility on the
basis that he did not tell anyone that he had been framed by
the police before trial. Specifically, the Government stated:

                    Let’s think back to
             defendant’s testimony yesterday.
             He said that Officer Martinez
             roughed him up, threw him
             against a wall, punched his face
             into a wall, and threatened him
             physically, and also threatened
             him with sending him to jail. And
             this made defendant fear for his
             life and his freedom. But he




                             7
didn’t fear for his freedom enough
to do anything about it. Until
today, he said nothing about this
conduct to anyone who could
make a difference.

        . . . Wouldn’t you expect
him to file a complaint with the
police about Officer Martinez’s
conduct,       especially       since
defendant testified that there was
a crowd of onlookers that
gathered while the arrest was
taking place?       But he never
reported the behavior to the
police, to anyone at the jail, to the
Prosecutor’s Office, to his
congressman. He testified that he
told a few friends, but he couldn’t
tell us who they were.            He
explained that he was in jail and
couldn’t make phone calls, but he
admitted he could speak to his
family, and did. And he also
admitted that he could write
letters. Yet he did nothing to
report what he describes as
abusive conduct by any -- by an
authority figure, by the police.

       ....




                 8
                     An innocent man framed,
             sitting in jail, and that’s all he did
             until he took the stand yesterday.

                    Compare all of this to
             Officer Ramos and Officer
             Martinez’s testimony.       The
             officers’ testimony simply makes
             more sense.

(App. 374-75.)

      The jury convicted Lopez of possession of a firearm as
a convicted felon.1 He was sentenced to 70 months’
imprisonment. This appeal followed.


      1
         It appears that the jurors struggled with their
assessment of the credibility of the witnesses, sending six
questions to the District Court during deliberations, asking:
              (1) “Were there any security
              cameras in use on the night of the
              occurrence, and what did they
              show?”
              (2) “What items were in Victor’s
              possession packet when he was
              released from the jail?”
              (3) “Is there documentation to
              prove that Crystal lived in
              Apartment Number 10 or a rental
              agreement?”
              (4) “Why were the aunt, José
              Pagan, and Crystal not questioned
              and called to be witnesses?”




                               9
                              II.

       The District Court had jurisdiction under 18 U.S.C. §
3231, and we have appellate jurisdiction under 28 U.S.C. §
1291. We review an unpreserved Doyle violation for plain
error. See United States v. Shannon, 766 F.3d 346, 355 n.12
(3d Cir. 2014) (citing United States v. Balter, 91 F.3d 427,
441 (3d Cir. 1996)). Under this framework, an appellant must
show: “(1) there is an ‘error’; (2) the error is ‘clear or
obvious, rather than subject to reasonable dispute’; (3) the
error ‘affected the appellant’s substantial rights, which in the
ordinary case means’ it ‘affected the outcome of the district
court proceedings’; and (4) ‘the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.’” United States v. Marcus, 560 U.S. 258, 262
(2010) (quoting Puckett v. United States, 556 U.S. 129, 135
(2009)).

                              III.

      On appeal, Lopez argues that the Government violated
his due process rights under Doyle v. Ohio by impeaching

             (5) “Is it standard procedure for
             both policemen to write a report?
             If only one is required to write a
             report, is the other required to
             write a witness statement?”
             (6) “Was the weapon checked for
             fingerprints, including bullets,
             magazine, and cartridge? If so,
             what were the results?”
(App. 434-35.)




                              10
him with his post-Miranda silence and that this error satisfies
plain error review.2 Although the Government concedes that
one of its cross-examination questions arguably violates
Doyle, the Government contends that legitimate impeachment
evidence offsets any Doyle violation and that Lopez cannot
satisfy plain error review.3 We will begin by discussing the
Doyle violation before turning to the four-part test for plain
error review.

                               A.

        In Doyle v. Ohio, the Supreme Court held that it is a
violation of due process to impeach a defendant’s testimony,
told for the first time at trial, with the defendant’s post-
Miranda silence. 426 U.S. at 611, 619. In that case, a state
prosecutor sought to discredit the defendant’s testimony that
he had been framed, which he told for the first time during
trial, by inquiring why he did not tell his story earlier. See id.

       2
         Lopez also argues that his Confrontation Clause
rights were violated, but we need not address this argument
because we hold that a new trial is required on the basis of the
Doyle violation.
       3
         In its answering brief, the government argued that
many of the questions implicating Doyle actually related to a
time period after Lopez was arrested but before he received
Miranda warnings. A subsequent submission to expand the
record, however, demonstrates that Lopez received Miranda
warnings the morning of his arrest, which the government
acknowledged in its sur-reply. We therefore need not address
the government's arguments about Doyle rights between
arrest and Miranda warnings because those events were
essentially contemporaneous in this case.




                               11
at 613. The State “argue[d] that the discrepancy between an
exculpatory story at trial and silence at time of arrest gives
rise to an inference that the story was fabricated somewhere
along the way.” Id. at 616. The Supreme Court disagreed.
Id. at 617-20. In holding that the inference sought to be
drawn by the prosecution was improper, the Supreme Court
highlighted the “insolubly ambiguous” nature of a
defendant’s post-Miranda silence and the unfairness that
would result from impeaching a defendant’s testimony with
this silence. See id. at 617-18. The Supreme Court
emphasized that “while it is true that the Miranda warnings
contain no express assurance that silence will carry no
penalty, such assurance is implicit to any person who receives
the warnings.” Id. at 618. More specifically, the Supreme
Court stated that “it would be fundamentally unfair and a
deprivation of due process to allow the arrested person’s
silence to be used to impeach an explanation subsequently
offered at trial.” Id.

        As in Doyle, Lopez remained silent after his arrest,
waiting until trial to proclaim that he was framed for
possessing the gun. When the Government cross-examined
him, the prosecutor challenged Lopez’s defense by repeatedly
asking whether he told anyone that he had been framed at an
earlier time.     Specifically, there were at least three
impermissible questions: (1) “did you tell anybody about
what happened?” (2) “You didn’t tell anybody that you were
just framed the night before, did you?” and (3) “At any point,
from the next day until just before this trial, did you tell




                             12
anybody, ‘I was framed by the police?’”4 (App. 266-67.)
The Government emphasized this exchange in its closing.5




      4
        In view of the other Doyle errors, we need not decide
whether the Government’s questions regarding whether
Lopez told Crystal or Pagan that he had been framed,
standing alone, also violate due process.
      5
        We have identified at least seven statements in the
Government’s closing that invite the impermissible inference
that Lopez’s silence and decision to maintain that silence
imply he fabricated his trial testimony:
              (1) “But he didn’t fear for his
              freedom enough to do anything
              about it.”
              (2) “Until today, he said nothing
              about this conduct to anyone who
              could make a difference.”
              (3) “Wouldn’t you expect him to
              file a complaint with the police
              about Officer Martinez’s conduct,
              especially       since    defendant
              testified that there was a crowd of
              onlookers that gathered while the
              arrest was taking place?”
              (4) “But he never reported the
              behavior to the police, to anyone
              at the jail, to the Prosecutor’s
              Office, to his congressman.”
              (5) “Yet he did nothing to report
              what he describes as abusive




                             13
        The Government’s impermissible cross-examination
here is distressingly similar to the questioning in Doyle. In
both cases, the prosecutor challenged the defendant’s silence
and failure to tell the police about being framed before
testifying at trial. Cf. Doyle, 426 U.S. at 613-14. Also in
both cases, the questioning was intended to raise the
impermissible inference that the defendant fabricated his
story sometime before trial and that the defendant’s testimony
was therefore not credible. See id. at 616-17. Moreover, the
Government relied on this improper impeachment in closing
by inviting the jury to construe Lopez’s silence against him
and to find that the officers were more credible than Lopez.
This impeachment strategy was soundly rejected in Doyle v.
Ohio.6 Whether this violation satisfies plain error review,
however, is a separate question that we now address.



            conduct by any -- by an authority
            figure, by the police.”
            (6) “An innocent man framed,
            sitting in jail, and that’s all he did
            until he took the stand yesterday.”
(App. 374-75.)
      6
          We also note that the Government’s closing
argument discusses both Lopez’s post-Miranda silence and
his failure to file a police misconduct report. Although the
Government argues that Lopez’s failure to file a police
misconduct report might not have been motivated by his right
to remain silent, and that a defendant’s silence must be
motivated by a Miranda warning for Doyle to apply, the
Government’s argument here misses the mark. The proper
focus is the inference the Government sought to draw from




                              14
                              B.

        As discussed above, the Government violated Doyle
by impeaching Lopez’s trial testimony with his post-Miranda
silence and by inviting the jury to infer that Lopez’s
testimony was a fabrication based on this silence. Thus, the
first two steps of plain error review are satisfied. That is,
there was “an error or defect” in Lopez’s trial, and that error
is “clear or obvious, rather than subject to reasonable
dispute.” See Puckett, 556 U.S. at 135.


Lopez’s post-Miranda silence. Cf. Hassine v. Zimmerman,
160 F.3d 941, 949 (3d Cir. 1998) (“We believe that questions
like this [‘[y]ou sat for seven months in prison with the
knowledge of what was really involved in regard to the his
gun, and you just kept it to yourself because your attorney
said to keep it to yourself?’] clearly invite the jury—in
violation of Doyle—to reject Hassine’s story and to infer that
Hassine’s post-arrest silence was a sign of his guilt.”). Here,
the Government sought to use Lopez’s post-Miranda silence
(including his failure to file a police misconduct report) to
suggest that Lopez’s defense, told for the first time at trial,
was a fabrication. This inference is impermissible. To find
otherwise would allow a prosecutor to circumvent Doyle by
asking the defendant why he did not take some type of
affirmative action in his defense, despite being prohibited
from asking why the defendant failed to speak in his defense.
This result would be incongruous. The implicit promise in
Miranda warnings is that a defendant’s silence will not be
used against him, such that a defendant has the right to
remain silent and to maintain that silence by not filing a
police misconduct report.




                              15
       The third step of this analysis addresses whether “the
error ‘affected the appellant’s substantial rights, which in the
ordinary case means’ it ‘affected the outcome of the district
court proceedings.’” Marcus, 560 U.S. at 262 (quoting
Puckett, 556 U.S. at 135). Here, there is a reasonable
probability that the Doyle violation affected the outcome of
Lopez’s trial. Marcus, 560 U.S. at 262. After hearing
testimony from the officers and from Lopez, the jury faced a
credibility determination: Should they believe the officers’
testimony that Lopez possessed a gun, or Lopez’s testimony
that the officers framed him? As such, Lopez’s credibility
was integral to his defense, and the Government’s repeated
references to his post-Miranda silence diminished his
credibility.7 Indeed, the jury struggled with the competing
factual testimony here as evidenced by the questions it sent to
the District Court attempting to elicit additional facts about

       7
            Absent this impermissible impeachment, the
Government argues that the jury would have questioned
Lopez’s credibility because of his prior felony convictions
and the fact that he initially gave a false name. The
Government contends that this legitimate impeachment
offsets its impermissible impeachment. We disagree, because
the legitimate impeachment evidence merely drew Lopez's
general credibility into question and did not create as direct
an inference that Lopez's story of being framed was a recent
fabrication.    The Government's Doyle violation more
powerfully created this inference, and it did so improperly by
undermining the defendant's exercise of his constitutional
rights. We therefore conclude that there is a reasonable
probability that this violation affected the outcome of Lopez's
trial.




                              16
the incident.8 Because Lopez’s defense depended entirely on
his credibility as compared to the officers’ credibility, we find
that the Government’s impermissible impeachment of
Lopez’s testimony diminished his credibility in a manner that
created a reasonable probability that this error affected the
outcome of his trial. Thus, the third step of this analysis is
satisfied.

       The fourth and final step of this analysis is whether
“the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Marcus, 560 U.S. at 262
(quoting Puckett, 556 U.S. at 135). This fourth step of plain
error review erects a high hurdle, surmounted only in “those
circumstances in which a miscarriage of justice would
otherwise result.” United States v. Olano, 507 U.S. 725, 736
(1993) (internal quotation marks omitted). This demanding
test is met here in view of the fact that the case hinged
entirely on the relative credibility of Lopez and the officers,
with no corroborating evidence for either side’s account; the
Doyle violation was blatant; and the government’s repeated
emphasis of the error in closing argument exacerbated the
prejudice from the violation. Under these circumstances, the
government’s conduct did indeed undermine the fairness,

       8
        As noted above, the jury asked whether there was any
security camera footage, whether Lopez had items on him
when he was arrested, whether Crystal lived in the building,
why Crystal and Pagan were not called as witnesses, whether
there were fingerprints on the gun, and whether standard
police reporting practices were followed. These questions
indicate the jury’s difficulty reconciling the competing
testimony in this case and its concerns about Lopez’s
testimony.




                               17
integrity, and reputation of judicial proceedings.9 Because
we find that the four steps of the plain error analysis are
satisfied, we will vacate Lopez’s conviction and remand for
a new trial. 10


      9
           We note that the Government’s impermissible
impeachment with Lopez’s post-Miranda silence is
particularly egregious for its repeated failure to abide by
precedent precluding such cross examination. This type of
error unfortunately resurfaces too often, threatening to
undermine the integrity of proceedings in our courts. See,
e.g., United States v. Shannon, 766 F.3d 346, 358 (3d Cir.
2014) (Doyle error was not harmless, stating “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.’”) (quoting Doyle, 426 U.S. at 611);
Gov’t of Virgin Islands v. Davis, 561 F.3d 159, 167 (3d Cir.
2009) (holding that the Doyle error was not harmless because
“the prosecutor’s impermissible comments about Davis’s
failure to provide his exculpatory version of the shooting to
the police went to the core of his theory of defense and, as a
result, his credibility.”); Woods v. Gov’t of Virgin Islands,
274 F. App’x 191, 194 (3d Cir. 2008) (non-precedential)
(holding that the Doyle error satisfied plain error review as
“the prosecutor’s conduct in this case [was] beneath the level
of propriety expected of the government.”) (internal quotation
marks omitted).
      10
           While we remain troubled by recurring Doyle
violations, we wish to commend Assistant United States




                              18
                       IV. Conclusion

       For the foregoing reasons, we will vacate the District
Court’s judgment of October 20, 2014, and remand for a new
trial.




Attorney Steven G. Sanders for his forthright
acknowledgment of the Doyle error during oral argument on
this appeal.    He was a model of professionalism in
apologizing for the error at trial and vowing to take steps to
avoid having this type of error recur.




                             19
