Farakeshv.Artuz

United States District Court, E.D. New YorkOct 3, 2000
99-CV-3945 (JG). (E.D.N.Y. Oct. 3, 2000)

99-CV-3945 (JG).

October 3, 2000.

ROBERT KOPPELMAN, ESQ. New York, NY, Attorney for Petitioner.

RICHARD A. BROWN, District Attorney, Queens County, Kew Gardens, New York, By: Sharon Y. Brodt, Assistant District Attorney, Attorney for Respondent.


MEMORANDUM AND ORDER


JOHN GLEESON, United States District Judge:

In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court held that due process prohibits the impeachment of a defendant's testimony at trial by reference to the defendant's post-arrest, post-Miranda warnings silence. The Court held that a defendant's silence in those circumstances is "insolubly ambiguous" because it "may be nothing more than" the exercise of the Miranda rights.Id. at 617. Moreover, it found the use of such silence to be "fundamentally unfair" in light of the assurance implicit in theMiranda warnings that "silence will carry no penalty." Id. at 618.

This case involves a drug courier who was arrested at John F. Kennedy International Airport ("JFK") when nearly twenty pounds of morphine was discovered secreted in hidden compartments in his three suitcases. His defense was that he did not know the drugs were in the suitcases. His first trial ended in a mistrial when the jury could not agree on that issue.

The second trial was plagued by three errors. First, the prosecutor did not even wait until the defendant testified to use the post-arrest silence protected by Doyle rather, in his case-in-chief, the prosecutor repeatedly elicited such silence in an impermissible effort to affirmatively prove the defendant's guilty knowledge.

Second, the prosecutor violated the rule in Doyle by arguing in summation that the defendant's exculpatory trial testimony should not be believed because he remained silent after his arrest "even though he was asked to make a statement."

Third, these Doyle violations were exacerbated by the trial court's erroneous preclusion — at the insistence of the prosecutor — of Farakesh's testimony that he had, in fact, provided his exculpatory statement to officers at the scene within minutes of his arrest.

I conclude that the trial in state court was infected by constitutional violations that cannot be deemed harmless, and that the petition for habeas relief must therefore be granted.

BACKGROUND

A. The Search of the First Suitcase and Farakesh's Arrest

On February 10, 1993, Farakesh arrived at JFK on a flight from Rome. (Tr. at 66-67.) When he reached Customs, he presented his Customs declaration form to Inspector Harold Rosenbloom, who noted that Farakesh had three large suitcases and a piece of hand luggage on a cart. (Tr. at 67, 69.) After learning that Farakesh was returning from a trip to Iran, Rosenbloom asked Farakesh to take his luggage to a secondary inspection station for further examination. (Tr. at 70, 72.)

"Tr." refers to the trial transcript of People v. Farakesh, Indictment No. 10495-93, Supreme Court of the State of New York, Queens County, which began on April 25, 1995.

At the secondary station, which was open to public view, Customs Inspector Daniel Cotter asked Farakesh for his Customs declaration form as well as his passport, resident alien card, international and domestic airline tickets, and baggage claim tickets. (Tr. at 104.) Cotter then asked Farakesh a number of questions, including whether he was bringing food into the United States. (Tr. at 111-12.) When Farakesh answered in the affirmative, Cotter asked him why he had stated otherwise on his Customs declaration. Farakesh explained that he believed he did not have to indicate it on the form because it was dried food. (Tr. at 112.)

After asking some additional routine questions and examining the rest of Farakesh's documents, Cotter asked Farakesh to place one of his three suitcases on a table so that it could be inspected. (Tr. at 113-15.) Farakesh lifted the suitcase onto the table, and Cotter instructed him to open it. Inside, Cotter observed numerous plastic bags containing dried food. (Tr. at 126.) After removing the food and certain other items, Cotter inspected the suitcase itself and noted that the bottom of the suitcase seemed unusually heavy. (Tr. at 128.) Cotter inserted a small knife through the lining of the suitcase at one of the interior corners. When he removed the knife, he noticed "a black gluey, tarry substance on the end of the [knife]." Cotter testified that "[he] asked Mr. Farakesh did he know what the substance was. And he replied that he thought it was glue." (Tr. at 129.)

After receiving permission from a supervisor to remove the lining of the suitcase, Cotter ripped out the lining and discovered a "gray tape-like material package . . . that took up the entire bottom of the suitcase." The entire package was less than an inch thick, with the black substance comprising approximately an eighth of an inch of that thickness. (Tr. at 130.) Cotter testified that, from the way in which the lining covered the package, "you would never [have known] there was anything in the bottom of the suitcase." (Tr. at 132.) At trial, Cotter was questioned regarding Farakesh's behavior during the inspection of the first suitcase:

Q. Now, when you were making, ripping out the base of the suitcase, where was the defendant at this time?
A. He was standing right in front of me on the other side of the belt.

Q. And did he say anything to you?

A. He said nothing.

(Tr. at 132.)

Cotter then performed a chemical test on the black substance, which was later discovered to be morphine, to determine if it contained heroin or cocaine. Although the test results were negative, Farakesh was handcuffed and removed to a processing room, out of the public view. (Tr. at 133; see also Tr. at 341.)

B. The Administration of Miranda Warnings and the Search of the Remaining Suitcases

Cotter testified that when they reached the processing room, "[Farakesh] was uncuffed. He was searched by me. I asked him to empty his pockets on the table. Which he did. He was advised of his rights by me and asked if he was going to make a statement." (Tr. at 133-34.) Cotter specifically testified that he informed Farakesh of his Miranda rights at this time, before the second and third suitcases were searched. (Tr. 144.)

In the processing room, Farakesh's remaining suitcases were opened and inspected. The items in the suitcases were removed and the lining of each suitcase was ripped out. (Tr. at 142.) Each had a false bottom containing a "package wrapped in a gray tape-like material." (Tr. at 142.) Since these packages also contained a black substance, Cotter tested each substance for the presence of heroin or cocaine, but again the tests were negative. (Tr. at 142-43.)

Customs Inspector Paul Mazurkewitz, the senior inspector at the International Arrivals Building, was also present when Farakesh was detained in the processing room. (Tr. at 243-44, 1187-88.) He prepared an inventory of the personal property that was taken from Farakesh at the time of his arrest. (Tr. at 1192-93.)

Farakesh was then taken to another room by Customs agents who were called to assist with the investigation. At this time, Cotter conducted additional tests on the black substance that had been taken from Farakesh's suitcases, and one of the tests indicated the presence of morphine. Cotter then removed as much of the packaging material as possible and weighed the three packages. (Tr. at 146.) They weighed approximately 19 and one-half pounds. (Tr. at 146-47.)

Cotter gave the packages containing morphine and the documents taken from Farakesh to Detective Michael McBride of the New York City Police Department. (Tr. at 206, 353.) McBride placed Farakesh under arrest. (Tr. at 423.)

C. The Trial Testimony Regarding Farakesh's Silence

a. Cotter

Cotter testified first about the discovery of the black, tar-like substance in the first of Farakesh's three suitcases, which occurred at the secondary inspection station. As stated above, he testified that, upon the discovery of the substance, Farakesh said he thought it was glue, (Tr. at 129); upon removal of the packages, Farakesh said nothing, (Tr. at 132). Then Cotter was asked about Farakesh's behavior after he had been taken to the processing room, where the remaining two suitcases were searched:

Q. Now did there come a time when you indicated that you gave the defendant Miranda warnings; is that right?

A. I did.

Q. When was this?

A. When he was brought into the processing room.

Q. Was this before or prior to [sic] the search [of the second and third suitcases]?

A. Before.

Q. And what if anything did he indicate?

A. He indicated that he didn't want to make any statements.
Q. And you specifically asked him whether or not he wanted to make a statement?

A. Absolutely.

(Tr. at 144.)

b. Mc Bride

McBride testified about his arrest processing of Farakesh after obtaining custody of him from Cotter:

Q . . . did you do any other work in reference to the arrest processing of this defendant?

A. Yes, I did.

Q. What, if anything, did you do?

A. I had to fill out an on-line booking sheet, more commonly referred to as an arrest report. At which time I asked the defendant certain pedigree information. His name, his age, date of birth, address, so on.

Q. What, if anything, else did you ask him?

A. I also asked him if he wanted to make statement at this time to me, at which time he declined.

Q. What did he say?

A. I said "no."

Although the trial transcript is quoted accurately, it is clear from the context that McBride meant that it was Farakesh who said "no" when asked if he wanted to make a statement. (Tr. at 446-47.) Respondent does not claim otherwise.

(Tr. at 446-47.)

c. Mazurkewitz

Mazurkewitz also testified about petitioner's post-arrest silence, and Farakesh makes much of that in his petition. (See Supplemental Petition for a Writ of Habeas Corpus and Memorandum at 10, 11, 15.) I ascribe little significance to this testimony. The record reveals that Muzurkewitz, unlike Cotter and McBride, was not called as a witness for the purpose of, inter alia eliciting Farakesh's post-arrest silence. Rather, the direct examination of Mazurkewitz constituted a dogged but unsuccessful effort by the prosecutor to elicit testimony that drug smugglers transport food items with the drugs in order to avoid detection by drug-sniffing dogs. (See Tr. 1197-1206.) Indeed, consistent with the manner in which he conducted the trial generally, the prosecutor was undeterred by the preclusion of this testimony; he asserted in summation that Farakesh carried food in the suitcases to throw off the dogs, despite the absence of evidence supporting the assertion and in defiance of a sustained objection during the summation. (See Tr. 1596-97.)

However, Mazurkewitz was not asked whether Farakesh had made a statement to him until the re-direct examination, after defense counsel challenged on cross-examination the inventory of items seized from the suitcases. The prosecutor's elicitation of Farakesh's refusal to make a statement to Mazurkewitz, viewed in context, was plainly intended to convey only that, at the time the inventory was prepared and provided to Farakesh, he did not dispute its accuracy. I am confident that this testimony had neither the impermissible purpose nor the effect of the testimony elicited from Cotter and McBride, i.e., proving Farakesh's knowledge of the drugs, and impeaching his exculpatory trial testimony, with his post-arrest silence.

Specifically, Mazurkewitz was asked on re-direct about Farakesh's behavior during the inventory process:


Q. You indicated that Mr. Farakesh was present while the inventory was made; is that right?

A. Yes, sir.

Q. And he had an opportunity to sign that document; is that right?

A. Yes, sir.

Q. Did he at any point in time dispute what was written on that document?

A. No, he did not.

Q. Did Mr. Farakesh ever make any type of statements to you?

A. None whatsoever.
(Tr. at 1210-11.)

D. Farakesh's Trial Testimony

Farakesh testified at trial. He did not dispute that he was carrying morphine in his suitcases, but he denied having any knowledge of its presence prior to its discovery by Cotter. Farakesh claimed that the suitcases had been given to him only recently, and that he had neither packed them nor handled them at any time.

1. His Exculpatory Version of Events

Specifically, Farakesh claimed that he had traveled to Iran for several days to visit his ailing father-in-law. While there, Farakesh attended a funeral service for another relative. At the service, he met a Mr. Assar, whom Farakesh had met briefly years earlier when Farakesh had refused his application for employment in Farakesh's company. Upon their reacquaintance, Farakesh told Assar of all the interactions he had had with the post-Shah regime since the time of their initial meeting. Farakesh told Assar of all the ways in which the new regime had deprived him of his rights, ostensibly for having worked in a business sponsored by the prior government. At the conclusion of this conversation, Farakesh told Assar that he was staying at his brother's house until his return to the United States the following day. Assar then "offered [Farakesh] some gift," apparently to take back to the United States. (Tr. at 1425; see also id. at 1427, "I told her [Farakesh's sister-in-law] that I have been offered some gifts and have to carry these things for me [sic] to airport."). Agreeing, Farakesh told Assar he could drop off the gifts at his brother's house the following day, providing that Assar not make the gifts too heavy, as Farakesh had just suffered a hernia operation.

Farakesh's trial testimony suggests to me that he has some difficulty with the English language.

The next day, Farakesh returned to his brother's house after shopping for goods to take back to the United States and a visit with his father-in-law. Upon his return, he found that Mr. Assar had both dropped off the suitcases he wanted Farakesh to take to the United States and added Farakesh's goods to the already-packed bags. Shortly thereafter, Assar arrived in order to carry the bags for Farakesh, whom he knew was recovering from a hernia operation. After dinner, Assar left, taking the suitcases with him. (Tr. at 1441.) A few hours later, Farakesh left for the airport, where he once again met Assar. (Tr. at 1442-43.) Farakesh gave Assar his passport and ticket. Assar left, and later returned with the passport, the ticket, a set of luggage keys and baggage claim tickets. (Tr. at 1444-45.) Assar gave those items to Farakesh and promptly left. Farakesh never saw or spoke to him again. (Tr. at 1446.)

2. His Attempt to Testify That He Provided His Exculpatory Story At Arrest

Farakesh attempted to testify further that he had, in fact, told this story about receiving the suitcases from Assar to Special Agent Robert Murwin at the time of his arrest. (Tr. at 1459.) Murwin was present in the processing room where the second and third suitcases were ripped open, but he did not arrive there until after that had occurred. (See Tr. at 1608-11.) Although the court had issued a subpoena for his appearance, Murwin never appeared at trial. (Tr. at 663-69, 922-25.) The trial court reasoned that Farakesh would not be allowed to offer testimony regarding his conversation with Murwin because Murwin had not testified at trial. (Tr. at 1461-63.) At a sidebar after the prosecutor's objection was sustained, defense counsel explained that he wanted to rebut the People's evidence that Farakesh had refused to make a statement on the date of his arrest. Moreover, defense counsel stated that Farakesh would testify that when he gave the exculpatory statement to Murwin, "Cotter was present and from either Cotter or one of the other witnesses [the prosecutor] has elicited that [Farakesh] did not say anything. That he did not give any excuse. Did he say anything. That I believe is part of our record. . . . He is contradicting what they have introduced into this case by saying that he didn't respond in any way." (Tr. at 1462.)

However, the trial judge persisted in his refusal to allow Farakesh to testify to any statement he made to anyone "who is not here as a witness:"

THE COURT: He can respond to anything that any of these witnesses have testified to. Not as to somebody who is not here as a witness. I will not allow it.
MR. SEGAL: I'll pose the question as to whether or not he said anything while Cotter was in the room.
THE COURT: No, you're not going to do it indirectly either, Mr. Segal. I'm not going to allow it, period.

MR. SEGAL: Very well.

Farakesh was represented at trial by Marvin Segal, Esq. The prosecutor was Assistant District Attorney Claude Stuart.

(Whereupon, the following took place in the open courtroom in front of the jury and the defendant:)
Q. Mr. Farakesh, while you were on the line with Mr. Cotter, and while you were accompanied by Mr. Cotter in to the first room, did you make any statements to him?

A. No.

Q. Did you make any statements at a subsequent time; yes or no?

THE COURT: To Mr. Cotter.

A. No.

Q. Now, did you make any statements to any other individual; yes or no?

MR. STUART: Objection.

THE COURT: Sustained. Don't answer.

MR. SEGAL: Very well.

(Tr. at 1462-63.)

E. The Prosecutor's Summation

The prosecutor began his summation by pointing out that Farakesh conceded bringing the morphine to New York from Iran in the suitcases. In light of the evidence produced,

the prosecutor stated, "He had to concede that." (Tr. at 1582.) The prosecutor then turned to the only disputed element — whether Farakesh knew he was importing drugs — and argued as follows:

The only thing that [Farakesh] did not have to concede is that he knew it was in there. And that's it in a nutshell. He didn't. Why? Because we know he didn't make any statements. Even when these things were being ripped out, he didn't say a word. We also know when he was even asked by Detective McBride whether or not he wanted to make a statement, he said no. And we know, ladies and gentlemen, we know because we went through this during voir dire, that knowledge is an operation of a person's mind. And we went through this, I think that each and every one of you, that no one sitting in this jury can read minds. And if a person doesn't tell us what he's thinking, then how would we know? Ladies and gentlemen, we went through that. We said we have to look and see exactly what he said and what he didn't say. What he did and what he didn't do. And if he gave you a story, whether or not that story, whether or not that story makes sense.

(Tr. at 1582-83 (emphasis added).) The prosecutor then turned to Farakesh's trial testimony, and argued the implausibility of Farakesh's exculpatory version of events. After arguing that the story itself "just doesn't make sense," the prosecutor sought to impeach the story with Farakesh's post-arrest silence:

So, in addition to that, ladies and gentlemen, what did or didn't the defendant do? We know he didn't make any statements even though he was asked to make a statement if he wanted to make a statement. We know that even when they were ripping out the stuff he never said the stuff is not mine, I don't know where the stuff came from. He remained totally quiet.

(Tr. at 1594-95 (emphasis added).)

Finally, near the end of his closing argument, the prosecutor again relied on Farakesh's silence as proof of his guilty state of mind and to impeach his exculpatory story:

Why are you trying to distance yourself from the suitcase if you don't know what was in it? That's what happens when you get caught with your hands in the cookie jar. First thing out of your mouth would be I just didn't know what was in there.

(Tr. at 1601 (emphasis added).)

At the end of summations, defense counsel complained about the fact that the prosecutor, after having successfully objected to Farakesh's testimony that he gave his exculpatory statement to Murwin, then argued to the jury that Farakesh failed to profess his innocence when he got caught with his "hands in the cookie jar." (Tr. at 1607-08.) In fact, defense counsel argued, Farakesh had professed his innocence — he had told Murwin about Assar and that the suitcases had come from Assar. In light of the ruling excluding that testimony, counsel contended, it was unfair of the prosecutor to argue that Farakesh had said nothing. (Tr. at 1608.)

The prosecutor responded by saying that the silence he was referring to in his summation "was specifically in relationship to Detective McBride and Inspector Cotter," (Tr. at 1609), not Murwin. Based on that representation and the additional representation that Murwin was not present when any of the suitcases were ripped open, the trial court denied defense counsel's request for a curative instruction. (Tr. at 1609-10.)

F. The State Court Proceedings

On February 11, 1993, Farakesh was charged with criminal possession of a controlled substance in the first degree. His first trial ended in a mistrial when the jury was unable to reach a verdict. The trial described above was held in April, May and June of 1995. On June 12, 1995, the jury found Farakesh guilty of criminal possession of a controlled substance in the first degree. He was sentenced to a term of 20 years to life in prison.

In his appeal to the Appellate Division, Second Department, Farakesh raised four claims: (1) his indictment should have been dismissed due to a violation of New York's speedy trial requirements; (2) because the evidence presented at the first trial was insufficient to establish his. guilt, principles of double jeopardy precluded the second trial; (3) the prosecutor improperly used his pre- and post-arrest silence as evidence of his guilt, thereby denying him his right to a fair trial; and (4) his motion to take depositions of two potential Iranian witnesses in Turkey was improperly denied.

On November 24, 1997, the Appellate Division affirmed his conviction. People v. Farakesh, 664 N.Y.S.2d 364 (2d Dep't 1997). It found that Farakesh's right to a speedy trial was not violated and that his claim regarding the sufficiency of the evidence against him at the first trial was unpreserved and, thus, raised no double jeopardy bar to his second trial. See id. at 365. The court concluded that the remaining claims were "either unpreserved for appellate review or without merit." Id. Farakesh applied for leave to appeal to the New York Court of Appeals, arguing that (1) he was deprived of a fair trial by the prosecutor's use of his pre- and post-arrest silence and by the trial court's refusal to allow him to testify about his statement to Murwin; and (2) he was denied his statutory right to a speedy trial. The Court of Appeals denied his application on May 20, 1998. People v. Farakesh, 91 N.Y.2d 1007 (1998).

Farakesh filed the instant petition on May 7, 1999, in the Southern District of New York. His petition was transferred to this district on July 14, 1999. He claims that the prosecutor's use of his post-arrest silence violated his rights under the Due Process Clause of the Fourteenth Amendment and deprived him of a fair trial. Farakesh asserts that the prosecutor improperly elicited testimony concerning his silence, and then used that testimony in summation to persuade the jury that it could infer his guilty knowledge from his silence. Farakesh further claims that he should have been allowed to testify that he did, in fact, make an exculpatory statement to Agent Murwin.

DISCUSSION

A. The Claimed Procedural Bar

On direct appeal in the Appellate Division, respondent argued that Farakesh's due process challenge to the use of his post-arrest silence had been procedurally defaulted and lacked merit. The Appellate Division found the claim to be "either unpreserved for appellate review or without merit." People v. Farakesh, 664 N.Y.2d 364 (2d Dep't 1997). Based on that record, respondent contends that Farakesh's claim is procedurally barred from habeas review by an independent and adequate state ground. I disagree.

When "a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722 750 (1991). Whether a prisoner's federal claim has been procedurally defaulted turns, in part, upon the manner in which the state court rejected the claim. See Hayes v. Coombe, 142 F.3d 517, 518 (2d Cir. 1998) (per curiam).

This case is controlled by Reid v. Senkowski, 961 F.2d 374 (2d Cir. 1992) (per curiam). In that case, the Second Circuit rejected the argument that the language "either unpreserved for appellate review or without merit," constitutes a clear and express reliance on a procedural bar. Reasoning that "[t]he state court did not clearly and expressly state whether it had examined the merits of [petitioner's] claim or had relied on a procedural default," the court held that the claim was "properly subject to federal habeas corpus review." Id. at 377.

Respondent asserts that the issue is not so clear, relying principally on Supreme Court and Second Circuit decisions involving silent state court affirmances. See Coleman v. Thompson, 501 U.S. 722 (1991); Quirama v. Michele, 983 F.2d 12 (2d Cir. 1993). It is true that those decisions have engendered some confusion; in a decision that does not cite Reid the Second Circuit has recently stated that the issue Reid decided "has yet to be determined in this circuit." Hayes v. Coombe, 142 F.3d 517, 517, 519 (2d Cir. 1998). But Reid has not been overruled, and it compels the conclusion that there is no procedural bar to Farakesh's claim. Even if the issue were unsettled in this circuit, the dicta in Hayes supports my conclusion, see 142 F.3d at 519, as do the principles of federalism that inform the adequate and independent state ground doctrine. When a state court implies that a defendant's federal claim might be procedurally defaulted, as the facially ambiguous language at issue here implies, it cannot reasonably be said that the review of that claim by a federal habeas court "renders ineffective" the state procedural rule, or "undermine[s] the State's interest in enforcing its laws." Coleman, 501 U.S. at 730-31. Accordingly, I find no procedural default.

B. The Standard of Review

When a habeas court is considering a claim that was decided on the merits in a state court proceeding, it may grant relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The two clauses of this provision have "independent meaning." Williams v. Taylor, 120 S.Ct. 1495, 1518 (2000). Under the first clause, a state court decision will be considered "contrary to" federal law if it either "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Id. at 1519-20.

This provision, added to the habeas statute by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), governs review of this petition since it was filed after AEDPA's enactment. See Williams v. Taylor, 120 S.Ct. 1495, 1518 (2000).

Under the second clause, a habeas petitioner may win relief if the state court decision "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 1520. The habeas court's determination that the state court wrongly decided the case is a necessary, but not a sufficient, condition to relief under this provision. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522; see also id. ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."); id. at 1521 (holding that standard is one of "objective" reasonableness).

Where, as here, the state court fails to set forth any basis for a decision on the merits, the application of these standards is somewhat more difficult. Nonetheless, for the reasons set forth below, I find the Appellate Division's decision rejecting Farakesh's due process claim was an unreasonable application of well-settled federal law prohibiting the use of post-arrest silence.

C. The Merits of Farakesh's Claim

1. The Prosecutor's Use of Post-Arrest Silence

The rule in Doyle "rests on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial." Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (internal quotation marks and citations omitted). As the Supreme Court said in Doyle:

"When a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, that he may have an attorney if he wishes, it seems . . . that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his testimony."
Doyle, 426 U.S. at 619 (quoting United States v. Hale, 422 U.S. 171, 182-83 (1975) (White, J., concurring)).

A prosecutor engages in the unconstitutional use of silence against a defendant when the "fact of [the defendant's] post arrest silence [is] submitted to the jury as evidence from which it [is] allowed to draw any impermissible inference." Greer v. Miller, 483 U.S. 756, 764-65 (1987). Thus, as in Doyle, it is impermissible to impeach the defendant with his post-Miranda silence in order to draw an inference that the defendant's trial testimony is false. See Doyle, 426 U.S. at 619 (quoting Hale, 422 U.S. at 182-83 (White, J., concurring)). Likewise, it is improper to "use `defendant's refusal to talk to police as evidence of guilt.'" Splunge v. Parke, 160 F.3d 369, 372 (7th Cir. 1998) (quoting Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987)).Doyle is violated if the prosecutor "suggest[s] to the jury that [the defendant] must have been guilty because an innocent person would not have remained silent." United States v. Kallin, 50 F.3d 689, 694 (9th Cir. 1995) (quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir. 1991)) (internal quotation marks omitted). Indeed, this type of argument is "precisely the inference that Doyle forbids." Id.

The prosecutor's evidence revealed that Farakesh (a) exhibited pre-arrest silence when the first suitcase was ripped open at the secondary inspection station; (b) expressly declined to make a statement after receiving his Miranda warnings upon being brought into the processing room; (c) exhibited post-arrest (and post-Miranda warnings) silence when the second and third suitcases were ripped open in the processing room; and (d) expressly declined to make a statement once again when McBride sought to question him in yet another room. All of the foregoing except (c) were elicited directly; as for (c), the only plausible inference from Cotter's testimony was that Farakesh remained silent when the second and third suitcases were opened. UnderDoyle, all of the foregoing except (a) could not properly be used to prove Farakesh's guilty knowledge or to impeach his trial testimony.

The use of the term "post-arrest" silence from this point forward refers at all times to post-Miranda silence as well. See Fletcher v. Weir, 455 U.S. 603, 605-07 (1982) (per curiam) (Doyle does not extend to prosecutor's use of post-arrest silence whereMiranda warnings had not yet been given).

There is no doubt that the prosecutor committed multiple violations of this rule. First, the prosecutor explicitly relied in summation on Farakesh's refusal to make a statement when "asked by McBride." That silence was protected by Doyle, and the prosecutor impermissibly used the silence to prove guilty knowledge and to impeach Farakesh's version of events. Respondent does not even attempt to argue otherwise. In and of itself, that violated Farakesh's due process rights.

Second, the prosecutor's argument that "[W]e know he didn't make any statements even thought he was asked to make a statement" (Tr. 1595) was an improper comment on Farakesh's refusal to make post-arrest statements to Cotter and McBride. Indeed, those were the only occasions on which Farakesh was asked to make a statement and he refused.

Third, the prosecutor repeatedly argued that Farakesh was silent when the drugs were being ripped out of the suitcases. Because, with respect to two of the three suitcases, this silence was post-arrest silence that Farakesh was assured would not be held against him, these comments also violated due process.

Finally, the prosecutor argued that the jury should not believe Farakesh's exculpatory trial testimony because he failed to provide his version of events at the time of arrest:

Why are you trying to distance yourself from the suitcase if you don't know what was in it? That's what happens when you get caught with your hands in the cookie jar. First thing out of your mouth would be I just didn't know what was in there.
(Id. at 1601.) In other words, because Farakesh's innocent explanation was not the first thing out of his mouth at the time of his arrest, he must have known that he was carrying morphine in his suitcases. When the failure to provide such an explanation was preceded by Miranda warnings, this is "precisely the inference that Doyle forbids." Kallin, 50 F.3d at 694.

Respondent argues that the "bulk of the prosecutor's references were to defendant's pre-arrest silence." (Respondent's Br. At 16.) Implicit in this contention is the faulty premise that only a few improper comments on post-arrest silence do "not rise to the level of constitutional error." (Id. at 15.) I disagree with that premise, but, in any event, the contention that the prosecutor was mainly referring only to Farakesh's pre-arrest silence is wrong.

As a preliminary matter, I note that the prosecutor made a different, and inconsistent, argument on direct appeal. In the Appellate Division, the prosecutor defended his use of Farakesh's silence not on the ground that it was pre-arrest silence, but on the ground that it was done "in anticipation of [Farakesh] offering, in his testimony, his alleged exculpatory statement made to Customs Agent Murwin." Brief for Respondent, People v. Farakesh, No. 95-06171, at 32. Specifically, the prosecutor argued that, since Farakesh had been allowed to testify to his statement to Murwin in the first trial (which had resulted in a hung jury), it was proper in the second trial to elicit that Farakesh had in fact refused to make a statement to Cotter and McBride. Id.

That argument, and its abandonment in respondent's opposition to this habeas petition, is troubling. One wonders why, if the challenged testimony was really elicited "in anticipation" of Farakesh's testimony about his conversation with Murwin, the prosecutor would later object to that very testimony when Farakesh took the witness stand. That objection, which was vigorous and successful, suggests that the real purpose in eliciting the post-arrest silence was not to "anticipate defendant's defense," (Id. at 33), but to use the post-arrest silence as affirmative proof of a guilty state of mind and to impeach Farakesh's exculpatory version of events.

If responding to Farakesh's testimony about his exculpatory statement to Murwin were truly the prosecutor's intention, there was an obvious mechanism available to him: a rebuttal case. Evidence of silence following Miranda warnings may properly be used to contradict a defendant who testifies to an exculpatory version of events and claims to have told the agents that version upon arrest. In that instance, the post-Miranda silence is not used to impeach the exculpatory story, but rather to impeach the defendant's version of his post-arrest behavior. The prosecutor could have called Cotter and McBride in rebuttal for that purpose. See United States v. Caro, 637 F.2d 869, 875 (2d Cir. 1981) (Friendly, J.); see also Doyle, 426 U.S. at 620 n. 11.

Also, the petitioner's statement to Murwin was indisputably a post-arrest statement, made in the processing room after the seizure of all of the drugs. Having told the Appellate Division that the purpose of Cotter's and McBride's testimony about Farakesh's silence was to impeach (in advance) his testimony that he made a post-arrest exculpatory statement, it seems disingenuous for the prosecutor to argue that the "bulk" of the testimony and argument challenged here referred only topre-arrest silence.

Furthermore, respondent's claim at oral argument that the prosecutor's references to Farakesh's silence while the drugs were being ripped out related solely to the opening of the first suitcase (i.e., solely to Farakesh's pre-arrest silence), simply mischaracterizes the record. There was no such limitation in the prosecutor's argument, and I have little doubt that none was intended. If the prosecutor wanted to refer only to Farakesh's pre-arrest silence in his summation, he could have done so explicitly, by limiting his argument to the removal of the drugs from the first suitcase. If prosecutors want to tread that close to the line drawn by Doyle, they do so at their peril, and it is their responsibility to avoid any suggestion that their arguments are based on protected, post-arrest silence.

Moreover, there can be little doubt that the jury was in fact confused here, that is, that it understood the prosecutor to be referring to Farakesh's silence when the second and third suitcases were being ripped open, after the Miranda warnings had been given. The trial judge had precisely that understanding. See Tr. 1609-11. Although the prosecutor assured the court (outside the presence of the jury, after defense counsel objected) that "I was talking about what happened at the belt," (Tr. 1610), i.e., when the first suitcase was ripped open, that is not what he said to the jury. Nor was there any effort to correct the jury's misimpression that Farakesh's post-arrest silence while the drugs were being ripped out of the second and third suitcases could properly be considered as evidence of his guilt and as impeachment of the version of events Farakesh provided at trial.

In sum, the prosecutor committed repeated, flagrant violations of Doyle. Farakesh was impliedly assured that his refusal to speak to Cotter or McBride would not be held against him, and the prosecutor nevertheless made that refusal a linchpin of his summation.

2. Harmless Error

Not every constitutional violation requires habeas relief. Rather, a "harmlesserror standard applies in determining whether habeas relief must be granted because of constitutional error of the trial type." Brecht, 507 U.S. at 638. The Supreme Court has determined that a Doyle violation requires reversal only if it "had substantial and injurious effect or influence in determining the jury's verdict." Id. at 631 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In determining whether this standard has been satisfied, court may consider a variety of factors, including "(1) the severity of the prosecutor's conduct; (2) what steps, if any, the trial court may have taken to remedy any prejudice; and (3) whether the conviction was certain absent the prejudicial conduct." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). However, if a court has "`grave doubt' . . . as to the harmfulness of the error, it must be resolved in favor of the habeas petitioner." Agard v. Portuondo, 117 F.3d 696, 714 (2d Cir. 1997) (quoting O'Neal v. McAninch, 513 U.S. 432, 437 (1995)), rev'd on other grounds, 120 S. Ct. 1119 (2000) (prosecutor's comments during summation regarding defendant's opportunity to hear witnesses and tailor testimony did not violate defendant's rights under Fifth, Sixth, or Fourteenth Amendment).

In this case, Farakesh's knowledge that the suitcases contained drugs was the only disputed element of the offense. In his effort to prove that knowledge, the prosecutor elicited testimony of Farakesh's post-arrest silence from both Cotter and McBride and used that testimony repeatedly in his closing argument as affirmative evidence of guilty knowledge and to impeach Farakesh's trial testimony. The prosecutor's comments were neither isolated nor infrequent. The violations of Doyle were both severe and deliberate.

The prejudice to Farakesh was compounded by the trial court's erroneous refusal to allow Farakesh to testify that he had, in fact, made an exculpatory statement to Murwin. Although the statement might well have been hearsay if offered for the truth, a question I need not address, Farakesh's testimony should have been allowed for the non-hearsay purpose of proving that he had made such a statement at the time of his arrest. The contrary testimony of Cotter and McBride had placed that question squarely before the jury, and the testimony that an exculpatory statement was made to Murwin was both relevant and admissible. That Murwin had not been called as a witness was no reason to preclude the testimony. The combined effect of the prosecutor's conduct and the judge's ruling was that the prosecutor's arguments regarding the post-arrest silence were not only unconstitutional, they may also have been false.

Indeed, even in the absence of the rule in Doyle, see Portuondo v. Agard, 120 S.Ct. at 1128 ("Although there might be reason to reconsider Doyle, we need not do so here."), Farakesh might well be entitled to habeas relief because of this fundamental unfairness in the trial. Specifically, even if it were permissible to elicit post-Miranda silence and to ask the jury to draw inferences against a defendant based on that silence, due process would require that the defendant be permitted to elicit evidence that he was not, in fact, silent. Because I conclude that Farakesh's due process rights were violated by the prosecutor's comment on his post-Miranda silence, I need not decide whether the preclusion of Farakesh's testimony about his statement to Murwin was, in and of itself, a due process violation.

Although the trial court was not presented with an objection based on Doyle to the use of Farakesh's silence, Farakesh's counsel did object to the combined effect of the prosecutor's summation and the court's erroneous preclusion of Farakesh's testimony that he made an exculpatory statement to Agent Murwin. Farakesh's attorney requested a curative instruction, but the court declined to give one. In short, the jury was not instructed to disregard the prosecutor's repeated reliance on Farakesh's post-arrest silence.

Finally, I cannot be certain that Farakesh would have been convicted absent the improper uses of his silence. Indeed, the events of Farakesh's first trial preclude such a conclusion. There, McBride did not testify concerning Farakesh's post-arrest silence and Cotter made only one brief, unsolicited comment about his silence. The prosecutor (also Assistant District Attorney Claude Stuart) did not comment on Farakesh's post-arrest silence in his closing argument, but instead limited his comments to Farakesh's pre-Miranda silence. (See Pet'r Mem. of Law at 27-28.) Finally, Farakesh was allowed to testify that he made an exculpatory statement to Agent Murwin. (See 1st Trial Tr. at 558-59.) The result of that trial, which was virtually free of the errors that tainted the second trial, was a hung jury, and the issue that divided the jury was whether the defendant acted knowingly. (See Pet'r Mem. of Law at 7, 25-26.) See Lee v. Bennett, 927 F. Supp. 97, 106 (S.D.N.Y.) (rejecting harmless error where prior jury panel deadlocked six to six),aff'd, 104 F.3d 349 (2d Cir. 1996) (unpublished table decision).

He stated:


Q. By advising him of his rights, what are you referring to?
A. I personally advised him of his rights and there is a sequence of questions that are and advisories that are made to Mr. Farakesh and one of the last questions was, does he want to make a statement, and he said no.
(See trial transcript of People v. Farakesh, Indictment No. 10495-93, Supreme Court of the State of New York, Queens County, March 8, 1995 ("1st Trial Tr."), at 62.)

Although the record does not contain a transcript of the closing arguments at the first trial, the respondent does not object to the petitioner's characterization.

Although the record does not contain a copy of the jury's note, respondent again does not object to petitioner's description of it.

I conclude that the Doyle violations in this case had a "substantial and injurious effect or influence" on the jury's verdict, and thus cannot be deemed harmless error.

CONCLUSION

For the foregoing reasons, the petition is granted. Respondent is directed to release Farakesh from custody within 45 days of the date of this order unless the state declares its intention, before those 45 days expire, to re-try Farakesh on the charges against him.

So Ordered.