                                      PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

                 No. 14-4088
                _____________

        UNITED STATES OF AMERICA

                       v.

               JACE EDWARDS,
                    Appellant
                _____________

         On Appeal from the District Court
                of the Virgin Islands
       District Court No. 3-14-cr-00007-001
  District Judge: The Honorable Curtis V. Gomez

              Argued May 20, 2015

Before: McKEE, Chief Judge, SMITH, and SCIRICA,
                 Circuit Judges

              (Filed: July 6, 2015)
Nelson L. Jones                  [ARGUED]
Ronald Sharpe
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
St. Thomas, VI 00802

       Counsel for the Appellee

Alvin E. Entin                     [ARGUED]
Entin & Della Fera
110 Southeast Sixth Street
Suite 1970
Fort Lauderdale, FL 33301

       Counsel for the Appellant

                  _____________________

                        OPINION
                  _____________________

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-


                              2
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.

                             I.

       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.1 Edwards

1
  Law enforcement replaced the actual cocaine in Bruce’s
suitcase with an imitation substance before conducting the
controlled delivery.
                             3
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.2 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

2
   Our review of Edwards’s testimony revealed that the
District Court may have erroneously excluded Edwards’s
descriptions of what he was told on these phone calls. The
District Court considered these out-of-court statements to be
inadmissible hearsay. But a statement is hearsay only if it is
offered “to prove the truth of the matter asserted.” Fed. R.
Evid. 801(c)(2). To the extent Edwards was offering the
statements made to him to explain why he went to Bruce’s
motel room—that is, for the statements’ effect on the
listener—those statements were not offered for their truth.
Therefore, they were admissible for a non-hearsay purpose.
                              4
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 (1976), but urges that the error
was harmless.3

                             II.

       “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
(3d Cir. 2010) (quoting Gov’t of the V.I. v. Davis, 561 F.3d
159, 163–64 (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

3
  The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742.
                              5
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 (1967)). This analysis requires
an examination of “the totality of the circumstances” to
determine whether Edwards’s guilty verdict “was surely
unattributable to the error,” or instead whether there was a
“reasonable possibility” that the error contributed to the jury’s
decision. Martinez, 620 F.3d at 337–38 (quoting Davis, 561
F.3d at 165–66).

       Here, the Government has failed to meet its burden.
The Government’s references to Edwards’s silence were not
made in passing. Indeed, after first seeking to elicit testimony
in its case-in-chief regarding Edwards’s post-Miranda
silence, the Government in closing asked the jury directly to
draw the very inference of guilt that Doyle and its progeny
forbid. Despite some evidence suggesting that Edwards’s
exculpatory story was not plausible, the Government’s case
depended in large part on Bruce’s recounting of what
happened in his motel room. Thus, the credibility of
Edwards’s competing story was crucial to the outcome of the
case. That credibility was undermined by the Government’s
insistence that if Edwards was truly unaware of the contents
of Bruce’s suitcase, he would have waived his Fifth
Amendment rights. Under these circumstances, a new trial is
required.

       Nor did the District Court’s belated and ineffective
curative instruction after the parties’ closings had been
completed mitigate the effects of the Government’s conduct.
The District Court instructed the jury that “[t]o the extent
                               6
there is an inclination of any defendant to not say something,
you cannot hold that against the defendant for not saying
something.” SA-0393. But this instruction came only after
the District Court had overruled Edwards’s contemporaneous
objection to the Government’s use of his post-Miranda
silence during its closing statement.4 Thus, the District
Court’s instructions were not the “proper and immediate
action” necessary to avoid a Doyle violation in this case. See
Greer v. Miller, 483 U.S. 756, 764 n.5 (1987).

        Further, the District Court had previously given
contradictory instructions to the jury before closings that
“what a person does, says or fails to say or do may indicate
the state of mind in which the person did the act.” SA-0343.
And the District Court instructed the jury that it could
“consider any statements made and acts done or omitted by
the defendant” to determine whether Edwards acted with the
requisite knowledge of the contents of Bruce’s suitcase. SA-
0344. In this case, “[i]t is rather easy to see” how the District
Court’s instructions “might, in fact, have contributed to the
jury’s verdict:    in the face of equivocal evidence of
[Edwards’s] intent, the jurors were invited by the District
Court to consider the statements that he failed to make.” See
United States v. Waller, 654 F.3d 430, 439 (3d Cir. 2011).
Considering the Government’s emphasis on Edwards’s post-
Miranda silence and “the manifest importance of immediate
curative instructions whenever a defendant’s post-Miranda

4
  Edwards did not renew his objection after the District Court
sua sponte issued its curative instruction.          But the
Government does not argue that we should review this case
for plain error, so we apply harmless-error review.
                               7
warning silence is mentioned before the jury,” Martinez, 620
F.3d at 339 n.15, we hold that the violation of Edwards’s
Fifth Amendment rights was not harmless.

                             III.

      For these reasons, we will vacate Edwards’s
conviction and remand for a new trial. We need not reach the
remaining issues Edwards raises on appeal.5




5
  In that regard, Edwards argues that the District Court
erroneously admitted Bruce’s testimony as to statements
Edwards made in Bruce’s motel room, and erroneously
declined to grant Edwards minimal-participant status at
sentencing. We note, however, that a statement “offered
against an opposing party” that “was made by the party in an
individual or representative capacity” is not hearsay,
regardless whether the statement was also “made by the
party’s coconspirator during and in furtherance of the
conspiracy.” Fed. R. Evid. 801(d)(2)(A), (E). Further, if the
District Court at sentencing is again faced with determining
whether Edwards is entitled to a downward departure for a
mitigating role, the District Court should consider the factors
we outlined in United States v. Headley, 923 F.2d 1079, 1084
(3d Cir. 1991) (citing United States v. Garcia, 920 F.2d 153
(2d Cir. 1990)), in exercising its “broad discretion.” United
States v. Isaza-Zapata, 148 F.3d 236, 238–39 (3d Cir. 1998).
                              8
