766 F.3d 346 (3rd Cir. 2014), 13-2389, United States v. Shannon

Docket Nº:13-2389
Citation:766 F.3d 346
Opinion Judge:JORDAN, Circuit Judge.
Attorney:Paul D. Boas, Esq. [ARGUED], Pittsburgh, PA, Counsel for Appellant. Donovan J. Cocas, Esq. [ARGUED], Rebecca R. Haywood, Esq., Office of United States Attorney, Pittsburgh, PA, Counsel for Appellee.
Judge Panel:Before: RENDELL, CHAGARES, and JORDAN, Circuit Judges.
Case Date:September 08, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Pennsylvania State Police and the U.S. Drug Enforcement Administration worked with confidential informants and identified Beaver County cocaine distributor, Taylor, and, through wiretaps, were able to observe part of a delivery of cocaine. According to Taylor, who later testified for the government, he drove to a hotel near the Pittsburgh Airport carrying a bag full of cash. He met with the... (see full summary)


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766 F.3d 346 (3rd Cir. 2014)




No. 13-2389

United States Court of Appeals, Third Circuit

September 8, 2014

Argued July 8, 2014

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On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. No. 2-11-cr-00237-003). District Judge: Honorable Alan N. Bloch.

Paul D. Boas, Esq. [ARGUED], Pittsburgh, PA, Counsel for Appellant.

Donovan J. Cocas, Esq. [ARGUED], Rebecca R. Haywood, Esq., Office of United States Attorney, Pittsburgh, PA, Counsel for Appellee.

Before: RENDELL, CHAGARES, and JORDAN, Circuit Judges.


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JORDAN, Circuit Judge.

Gathon Dudley Shannon appeals his conviction and the sentence imposed on him by the United States District Court for the Western District of Pennsylvania. Among other things, he contends that the government violated his Fifth Amendment rights at trial by cross-examining him about his post-arrest silence.1 Because we agree that the government violated his constitutional right to remain silent, we must vacate the judgment of conviction and remand for a new trial.

I. Background

Whether Shannon's conviction can stand is contingent on whether the constitutional error that infected his cross-examination was " harmless beyond a reasonable doubt." 2 Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We therefore provide a detailed overview of the evidence presented at trial.

A. Factual History

In December 2009, the Pennsylvania State Police (" PSP" ) along with the United States Drug Enforcement Administration (" DEA" ) began investigating an increase in cocaine sales across Beaver County, Pennsylvania. Working with confidential informants, the DEA was able to identify the local distributor as Adrian Taylor, and, through a series of wiretaps, learned that a large shipment of cocaine was expected to arrive in Beaver County during the weekend of August 20-21, 2011.

Using traditional surveillance techniques, the DEA watched Taylor leave his Beaver Falls home on August 20 to collect money from his street-level dealers in anticipation of the shipment's arrival. According to Taylor -- who ended up testifying on behalf of the government -- he then drove to a hotel near the Pittsburgh International Airport carrying two bags, one full of cash that he had collected from his associates and the other containing items necessary to " wrap" the cash.3 There, he met with the cocaine supplier, Vincent Middlebrooks from Houston, Texas, who counted the cash and wrapped it while Taylor waited. Taylor testified that, during drug deals like this, he " always only [met with] Middlebrooks." (App. at 984.) According to Taylor, after the cash was

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prepared, Middlebrooks drove to Washington County, Pennsylvania, where he was expected to " grab[] the coke" and then come back and transfer the drugs to Taylor. ( Id. at 985.)

Shortly after midnight the following day, when the exchange of drugs for cash was evidently complete, a DEA team saw Taylor flag down Middlebrooks at a second hotel. The two conversed briefly, and Taylor left and drove home. The agents then observed Middlebrooks go back to the first hotel. The next morning, agents saw Middlebrooks return his rental car at the Pittsburgh airport and embark on a flight back to Houston.

Given that Taylor had succeeded in bringing multiple kilograms of cocaine into Beaver County, the DEA was able to persuade a judge that a " roving wiretap" on Taylor's communications was warranted to follow the drugs and money and to learn more information about Middlebrooks.4 In the meantime, by early September, Taylor's Beaver County associates had already sold all the cocaine from the August shipment and were, as the government says, " clamoring for more." (Gov't's Br. at 6.) Taylor thus immediately began preparing for the next deal, collecting as much cash as he could to bankroll another shipment.

On September 27, 2011, Taylor texted Middlebrooks, asking when the next cocaine shipment was expected to arrive in Beaver County. That was the first communication between the two that the government had intercepted. The two then spoke by telephone, with Middlebrooks confirming that the next shipment would arrive within two days, on Thursday, September 29, 2011. During that telephone call, in which Taylor agreed to buy 16 kilograms of cocaine, Middlebrooks confirmed that he would fly to Cleveland, Ohio, on September 28 and proceed to drive to a hotel near Taylor's house, where he would spend the night packaging the cash for the following day's deal.

On the night of September 28, 2011, DEA agents in Cleveland spotted Middlebrooks as he deplaned from a flight inbound from Houston, walking with a black roller-bag. The agents followed Middlebrooks as he drove a rental car two hours from the Cleveland airport to one of the Pittsburgh hotels where he had previously met Taylor. While en route, Middlebrooks spoke with Taylor on the phone and stated that he " got the car and everything." (App. at 624.) Taylor responded by warning Middlebrooks to " keep your eye out." ( Id. at 625.)

In the early morning hours of September 29, 2011, DEA agents watched as Taylor arrived at the hotel -- again, carrying two bags -- and joined Middlebrooks. After approximately ten minutes together, Taylor walked out without the two bags and returned to his vehicle. Several hours later, Middlebrooks called Taylor and told him that he was " on the move." ( Id. at 669.) Having wrapped the money into nine packets, Middlebrooks left the hotel with a single bag containing the cash. As he proceeded to drive to a truck stop in Eighty Four, Pennsylvania, in Washington County -- the same county where the August 20-21 cocaine transaction had occurred -- several DEA agents surreptitiously followed him.5

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According to the government, once Middlebrooks reached the truck stop, the agents were forced to " hang back and watch from a distance so as not to blow their cover." (Gov't's Br. at 8.) From their vantage point, they saw Middlebrooks back his vehicle up to a tractor-trailer rig, open his trunk, and then hand the bag full of packaged cash to a man -- later identified as Shannon -- standing beside the rig. Notably, the agents said that they did not see Middlebrooks receive anything in return because their view was partially obstructed by a building and various parked trucks. The next thing the agents observed was Middlebrooks getting back into his car. The agents followed him as he rendezvoused with Taylor at the same hotel from which he had come. At that point, given that the money had already changed hands, the officers moved in to arrest both men. When Taylor and Middlebrooks were taken into custody, each was found with three different cell phones on their persons, including a Boost Mobile Phone on Middlebrooks. " [A] black bag containing a large amount of cocaine" was also found in the trunk of Middlebrooks's car. (App. at 801.)

Back at the truck stop, Shannon stored the bag inside the cab of his truck and remained waiting inside the rig. According to testimony Shannon later gave on the witness stand, he had traveled to Eighty Four, a truck stop he often frequented, only as a favor to someone named Phillip Williams, a trucker whom he became acquainted with while on the road and whom he had occasionally met in Houston. Shannon said that Williams had called him to ask whether, as a favor, he would pick up someone named " Vince," another trucker, whose vehicle had supposedly broken down in Pittsburgh. Shannon testified that he did not know Vince but was willing to oblige Williams's request because he himself had recently been stranded after his own truck broke down and he empathized with Vince's predicament. According to Shannon, he had agreed to meet Vince at Eighty Four -- not exactly where Williams had requested, but a familiar haunt to Shannon -- to give Vince a ride back to Houston.

But upon meeting " Vince," who turned out to be Middlebrooks, Shannon claimed to be puzzled. Not only did Middlebrooks arrive driving a car, which implied that he was in no need of a ride, but he also handed Shannon a bag and asked whether he would be willing to wait " about an hour" so that he could " take care of some other business." (App. at 1356.) Shannon testified that he agreed to wait because he had already gone out of his way to pick the man up. After some " [t]ime went by," however, Shannon said he became concerned by the situation and opened the bag, worried that he might have been handed " dope." ( Id. at 1357-59.) Shannon testified that, when he saw that it was instead cash, he " put the money back in the bag[,] ... threw it up under [his] bed and got out of [his] truck." ( Id. at 1359.) According to Shannon, he began walking towards the truck stop's store to call his girlfriend for help. He was arrested before he reached the building.

Upon a search of Shannon's vehicle and person, agents found the bag, which contained $669,340, as well as $1000 in the glove compartment of the truck and three phones -- a Boost Mobile phone on the truck's dashboard, an iPhone on the ground near where Shannon was arrested, and a Verizon Motorola phone.

On December 14, 2011, a grand jury in the Western District of Pennsylvania handed down a superseding indictment that, inter alia, charged Shannon, Taylor, and Middlebrooks with Conspiracy to Distribute and Possess with Intent to Distribute

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Five Kilograms or More of Cocaine, in violation of 21 U.S.C. § 846 (Count I), and Distribution and Possession with Intent to Distribute Five or More Grams of Cocaine, in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(A)(ii) (Count II). Both Middlebrooks and Taylor pleaded guilty, but Shannon chose to go to trial.

B. The Trial

Shannon's trial strategy was to emphasize that he was trying to do someone a favor and that he...

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