Now pending before the Court is Robert J. Cook's Petition for Review (Docket No. 1), seeking review of the Social Security Administration's final decision to deny his claim for disability benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
On May 7, 2004, Robert J. Cook ("Petitioner") applied for disability insurance benefits and supplemental security income payments, alleging disability beginning January 1, 2004. (AR 77-79). Petitioner's applications were denied initially on October 12, 2004 (AR 71) and, again, upon reconsideration on February 17, 2005 (AR 64). Petitioner filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). (AR 63). On September 19, 2006, ALJ Hayward Reed held a hearing in Boise, Idaho, at which time, Petitioner, represented by attorney Andrea Cardon, appeared and testified. (AR 343). A vocational expert, Anne F. Aastum, and Petitioner's ex-wife, Rebecca Cook, also appeared and testified during the same September 19, 2006 hearing. (AR 343).
On June 6, 2007, the ALJ issued a decision denying Petitioner's claims, finding that Petitioner was not disabled within the meaning of the Social Security Act. (AR 21-40). Petitioner timely requested review from the Appeals Council on August 3, 2007. (AR 20). On January 30, 2009, the Appeals Council denied Petitioner's request for review (AR 7), making the ALJ's decision the final decision of the Commissioner of Social Security.
Having exhausted his administrative remedies, Petitioner timely files the instant action, arguing that "Defendant and ALJ Reed's decision that Mr. Cook is not disabled is not supported by substantial evidence, contains errors of law, and constitutes an abuse of discretion." See Brief in Supp. of Pet. for Review, p. 2 (Docket No. 13). Specifically, Petitioner asserts that the ALJ: (1) failed to properly evaluate the opinions of Petitioner's treating physicians (see id. at pp. 4-6); (2) failed to properly evaluate Petitioner's credibility (see id. at pp. 6-8); (3) improperly rejected the testimony of lay witness testimony during the administrative hearing on September 19, 2003 (see id. at pp. 7-8); (4) failed to properly discuss the non-examining consultants' opinions (see id. at p. 9); (5) inappropriately relied on the vocational expert's testimony in response to hypothetical questions (see id. at pp. 9-10); and (6) incorrectly placed Petitioner within a "light work" category instead of a more-appropriate "sedentary work" category (see id. at pp. 11-12). Petitioner therefore requests that the ALJ's decision be reversed and/or remanded to allow the ALJ an opportunity to further reevaluate the evidence.
With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ's construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. However, reviewing federal courts "will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute." Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a sequential process when determining whether a person is disabled in general ( see 20 C.F.R. §§ 404.1520, 416.920) — or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) — within the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity ("SGA"). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is defined as work activity that is both substantial and gainful. "Substantial work activity" is work activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). "Gainful work activity" is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless of how severe his physical/mental impairments are and regardless of his age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that Petitioner "has not engaged in substantial gainful activity since January 1, 2004, the alleged onset date." (AR 26).
The second step requires the ALJ to determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is "severe" within the meaning of the Social Security Act if it significantly limits an individual's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of impairments is "not severe" when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe combination of impairments: (1) a history of L5-S1 herniated nucleus pulposus, status post discectomy in October 1986; (2) a right subtalar joint arthritis, status post history of bilateral calcaneal fractures to the heels in August 1998 with closed treatment fixation; (3) peripheral vertigo; (4) unspecified, mild sensorineural hearing loss; and (5) degenerative disc and facet disease of the cervical spine. (AR 26-27). The ALJ went on to state that "these impairments cause more than a slight abnormality or a combination of slight abnormalities on the claimant's ability to work, therefore, they are severe." (AR 27).
The third step requires the ALJ to determine the medical severity of any impairments; that is, whether the claimant's impairments meet or equal a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is yes, the claimant is considered disabled under the Social Security Act and benefits are awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant's impairments neither meet nor equal one of the listed impairments, the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner's above-listed impairments, while severe, do not meet or medically equal, either singly or in combination, the criteria established for any of the qualifying impairments. (AR 27-32).
The fourth step of the evaluation process requires the ALJ to determine whether the claimant's residual functional capacity is sufficient for the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual's residual functional capacity is his ability to do physical and mental work activities on a sustained basis despite limitations from his impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual's past relevant work is work performed within the last 15 years or 15 years prior to the date that disability must be established; also, the work must have lasted long enough for the claimant to learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner could perform a range of work with the following limitations: (2) lift and/or carry 20 pounds occasionally and 10 pounds frequently; (2) stand and/or walk at least 2 hours of an 8-hour workday; (3) sit throughout an 8-hour workday with the ability to alternate positions as needed to relieve pain and discomfort; (4) push and pull within the weight limitations; (5) frequently kneel or crawl; (6) occasionally climb stairs or ramps, balance, stoop, or crouch; (7) never climb ladders, ropes, or scaffold; and (8) avoid concentrated exposure to temperature extremes, hazards, or vibration. (AR 32-38). In doing so, however, the ALJ further found that Petitioner is unable to perform any past relevant work. (AR 38).
In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of his impairments, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do other work, he is not disabled; if the claimant is not able to do other work and meets the duration requirement, he is disabled. Here, the ALJ found that Petitioner was not able to perform past relevant work; however, the ALJ also found that Petitioner maintained the ability to perform a number of unskilled, light occupations in the national economy, including survey worker, cashier II, and an office helper. (AR 39-40).
1. Petitioner's Medical Providers' Opinions
The ALJ rejected the medical opinions that suggested Petitioner maintained a covered disability, even though those opinions originated from Petitioner's treating physicians. The ALJ relied instead on the objective medical evidence of record, including evidence from Petitioner's other medical providers.
The Ninth Circuit has held that a treating physician's medical opinion is entitled to special consideration and weight. Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989). The treating physician's opinion is given that deference because "he is employed to cure and has a greater opportunity to know and observe the individual." Id. Where the treating physician's opinions are not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Even if the treating physician's opinions are contradicted by another doctor, they can only be rejected if the ALJ provides specific and legitimate reasons, supported by substantial evidence in the record for doing so. Id. Regardless, a treating physician's opinion on the ultimate issue of disability is not conclusive. Rodriguez, 876 F.2d at 762 (citations omitted); see also SSR 96-5P, 1996 WL 374183, *2 ("The regulations provide that the final responsibility for deciding [whether an individual is `disabled' under the Act] . . . is reserved to the Commissioner."); 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability.").
Therefore, merely concluding that a particular physician is a treating physician does not mandate the adoption of that physician's opinions. In addition to the standard outlined above, treating physician's opinions are given less weight if they are inconsistent with the record as a whole or if the conclusions consist of vague, conclusory statements unsupported by medically acceptable data. Stormo v. Barnhart, 377 F.3d 801, 805-06 (8th Cir. 2004); see also Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (lack of objective medical findings, treatment notes, and rationale to support treating physician's opinion is sufficient reason for rejecting that opinion).
On January 29, 2007, Dr. Maughan completed a "Medical Source Statement of Ability to Do Work-Related Activities (Physical)" (the "Medical Source Statement"). (AR 279-282). There, Dr. Maughan recommended, among other things, that Petitioner "never" perform climbing or balancing activities. (AR 280). Although giving "significant weight" to the majority of Dr. Maughan's overall findings, the ALJ disagreed with Dr. Maughan as to Petitioner's climbing/balancing limitations, stating:
(AR 38). Petitioner disputes the ALJ's conclusion in this respect, arguing that the ALJ "distort[ed] Dr. Maughan's opinion and the medical record" and that Petitioner's medical records support Dr. Maughan's findings. See Brief in Supp. of Pet. for Review, p. 5 (Docket No. 13). The Court cannot agree.
First, the record reveals that the ALJ did not distort Dr. Maughan's opinion. The Medical Source Statement outlines in no uncertain terms that Petitioner can/should never perform climbing and balancing activities. (AR 280). The ALJ's paraphrasing of this opinion within his decision (see supra at p. 9) does not amount to a distortion of the record; indeed, it is altogether consistent with the record. Moreover, Petitioner's own briefing acknowledges that the Medical Source Statement reflects Dr. Maughan's opinion in this respect. See Brief in Supp. of Pet. for Review, p. 5 (Docket No. 13) ("On the Medical Source Statement [], Dr. Maughan indicates Plaintiff has postural limitations in climbing and balance. Out of three choices, Dr. Maughan marked "Never" since it best describes Plaintiff's limitations and is entirely consistent with Dr. Maughan's medical opinion and records.").
Moreover, it should be pointed out that, in the Medical Source Statement, Dr. Maughan stated that Petitioner could "frequently" perform kneeling, crouching, crawling, and stooping activities (AR 280), arguably contradicting his earlier, November 9, 2006 letter to Petitioner's then-attorney (which Petitioner favorably cites), where he stated that "[b]ending, stooping, kneeling might 371 F.3d 851, 852 (3d Cir. 2004) (quotation marks omitted).
Moreover, it should be pointed out that, in the Medical Source Statement, Dr. Maughan stated that Petitioner could "frequently" perform kneeling, crouching, crawling, and stooping activities (AR 280), arguably contradicting his earlier, November 9, 2006 letter to Petitioner's then-attorney (which Petitioner favorably cites), where he stated that "[b]ending, stooping, kneeling might 371 F.3d 851, 852 (3d Cir. 2004) (quotation marks omitted).
Section 1052(b) of the Virgin Islands Code provides in its entirety:
Whoever abducts, takes or carries away any person by force or threat with the intent to commit rape is guilty of kidnapping and shall be imprisoned for not less than 15 years and shall not be eligible for parole until he has served at least one-half of [the] sentence imposed.
V.I. Code Ann. tit. 14, § 1052(b). Section 1052(b) required the Government to prove beyond a reasonable doubt: (1) that Martinez abducted, took, or carried away Harvey against her will; (2) that he did so by force or threat; and (3) that he intended to commit rape while doing so. With respect to the kidnapping component of the crime, we must consider (1) the duration and distance of asportation of the victim, and (2) whether the asportation created a significant danger to the victim independent of that posed by a separate ongoing offense. Gov't of the VI. v. Ventura, 775 F.2d 92, 96-98 (3d Cir. 1985) (modifying four-factor test set forth in Gov't of the V.I. v. Berry, 604 F.2d 221, 227 (3d Cir. 1979)).
The Virgin Islands Code specifies several classes of rape. Aside from the independent offenses of unlawful sexual contact in the first and second degrees, see V.I. Code Ann. tit. 14, §§ 1708-09, the Code delineates the crimes of rape in the first, second, and third degrees, and aggravated rape in the first and second degrees. See V.I. Code Ann. tit. 14, §§ 1700-03. But § 1052(b) does not specify which version of rape a defendant must intend to commit during a kidnapping to violate the statute. We can readily discern the answer. The statute does not require a defendant to intend to commit aggravated rape, for it plainly says only "intent to commit rape." Conversely, the crimes of rape in the second and third degrees are statutory-rape prohibitions, in which the crime is defined based on the respective ages of the perpetrator and the victim, not on the perpetrator's intent or the victim's consent. See Gov't of the V.I. v. Richards, 44 V.I. 47, 55, 2001 WL 1464765 (Terr.Ct. 2001). Accordingly, we believe it is it clear that § 1052(b) requires the Government to prove that the defendant intended to commit (at least) rape in the first degree. Relevant here, such a crime occurs when a defendant engages in sexual intercourse or sodomy with another "when the [victim'sl resistance is forcibly overcome." V.I. Code Ann. tit. 14, § 1701(2).
In Berry, we interpreted § 1052 (then a general kidnapping statute) narrowly to preclude its "overzealous enforcement . . . [against] persons who have committed such substantive crimes as robbery or assault[, and] which inherently involve the temporary detention or seizure of the victim. . . ." 604 F.2d at 226. Lest those defendants be punished for kidnapping when "in reality [they] committed lesser or different offenses, of which temporary seizure or detention played an incidental part," id., we set forth four factors to determine whether a defendant was guilty of the separate crime of kidnapping: (1) the duration and distance of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense. Id. at 227. After we decided Berry, the Virgin Islands legislature added § 1052(b), ultimately prompting our decision in Ventura. There, we explained that by enacting the kidnapping-for-rape statute, "the legislature was not concerned, as was the Berry court, about the risk of over-zealous application of the kidnapping charge to impose a sentence substantially greater than that attached to the underlying crime." 775 F.2d at 96. We held that while the statutory amendment marginalized the second and third Berry factors, the first and fourth factors remained applicable to § 1052(b). Id. at 97 98. We emphasized, however, that "the modified Berry test used in § 1052(b) cases is not a stringent one." Id. at 98 n. 12. Here, Martinez argues that Berry compels reversal of his conviction. He ignores Ventura entirely. In this opinion, we refer to the "first" and "second" Ventura factors, which are synonymous with the first and fourth Berry factors.
Martinez first argues that because Harvey entered the car voluntarily at the Harbor View parking lot, the evidence was insufficient to prove that he took her away against her will. We disagree. No language exists in § 1052(b) that would absolve the abduction of an unconsenting victim merely because the victim's initial interaction with the perpetrator was voluntary. We hold — as have the majority of courts considering similar proposed interpretations of the federal kidnapping statutes — that § 1052(b) reaches the abduction of an individual during an otherwise consensual encounter if consent is withdrawn at some point after the encounter commences. Harvey's testimony that she several times pleaded with Martinez to take her home easily supported the jury's finding that she had been detained against her will during the car ride.
See, e.g., United States v. Tian, 339 F.3d 143, 152 (2d Cir. 2003) ("The Hostage Taking Act . . . does not require that a seizure or detention be against a hostage's will from its inception."); United States v. Carrion-Caliz, 944 F.2d 220, 226 (5th Cir. 1991) ("The dispositive question is not whether [the hostages] initially agreed to go to [the hostage taker's] house, but rather whether [the hostages] later were detained or confined there against their will."); United States v. Eagle Thunder, 893 F.2d 950, 952 (8th Cir. 1990) ("Even if [the victim] had initially consented to accompanying [the defendant in his car], that fact would not prevent the occurrence of a kidnapping because [the defendant] thereafter detained [the victim] despite her repeated requests to be taken home or to her mother."); United States v. Redmond, 803 F.2d 438, 439 (9th Cir. 1986) ("The fact that one originally accompanies another without being forced does not prevent the occurrence of a kidnapping where force is later used to seize or confine the victim."); United States v. McBryar, 553 F.2d 433, 434 (5th Cir. 1977) (per curiam) (kidnapping conviction upheld where defendant agreed to take victim to one destination but drove in opposite direction and refused her requests to be let out of automobile).
Martinez next argues that the evidence was insufficient to sustain the element that force or threat be used to carry out the kidnapping. We disagree. Harvey's testimony that Martinez brandished the gun in the car (where it remained on his lap for the duration of the ride) was sufficient to permit the jury to find that Martinez detained Harvey by force or threat. Introduction of the gun into the equation stopped Harvey's attempt to grab the steering wheel instantly. Alternatively, immediately before Martinez actually brandished the gun, he ordered Harvey not to grab the steering wheel because he had a gun and did not want to be stopped by the police. This threat alone established the element of force or threat, whether the gun itself was ever introduced or not. See United States v. Macklin, 671 F.2d 60, 64 (2d Cir. 1982) (noting that a kidnapping offense requires a defendant to use "some means of force — actual or threatened, physical or mental — . . . so that the victim is taken, held and transported against his or her will" (emphasis added)).
Martinez next argues that any asportation in this case was "minimal." We disagree. The evidence readily established the first Ventura factor (distance or duration of the asportation). Martinez transported Harvey 10.8 miles from Harbor View to the secluded area where the sexual encounter occurred, and the entire episode appears to have lasted about an hour. This is plainly sufficient. See Gov't of the VI. v. Aiment, 820 F.2d 635, 638 (3d Cir. 1987) (concluding that evidence of asportation from "one environment . . . to another" over a distance of approximately seventy feet was sufficient); Ventura, 775 F.2d at 98 (explaining that dragging victim indoors, over a period of several minutes and for a distance of eighty-eight feet was sufficient degree of asportation under the less-stringent modified Berry framework).
Martinez also claims that "no evidence regarding [independent] significant danger was ever presented at trial." Martinez Br. at 19. We disagree. The second Ventura factor was satisfied by testimony regarding: (1) Martinez's reckless driving en route to the Salt River area; (2) the presence of the firearm throughout the episode; and (3) the fact that the alleged kidnapping occurred several minutes before the sexual encounter itself. See Ventura, 775 F.2d at 98 (explaining that harm of being dragged "through the bushes by the ear while [the defendant was] carrying a gun" is significant danger, and independent of the rape committed). The threat posed by the firearm and Martinez's driving clearly presented a danger independent of any harm posed by the alleged sexual assault.
Finally, Martinez argues that the evidence was insufficient to establish that he formed the specific intent to commit rape during the asportation because the acquittal on the rape charge removes any possible inference that he had formed the intent to commit rape at an antecedent moment. We disagree. As an initial matter, even accepting for the moment that the jury acquitted Martinez of rape because it determined that the sexual intercourse was consensual, we reject the underlying premise of the claim. There is no logical or temporal inconsistency between a finding that Martinez intended to rape Harvey at one point in time, and a finding that Harvey nevertheless acquiesced to Martinez's sexual advances several minutes later.
In any event, Martinez appears to argue that, having found the sexual act voluntary as to the rape charge, the jury was not permitted to use Harvey's testimony about that act in determining his earlier intent as to the kidnapping charge. Again we disagree. Each count of the criminal information was independent of the next; the jury was permitted — indeed, required — to assess all of the evidence as it pertained to each individual count. Hypothesizing about contradictory jury verdicts does not afford a basis for reversing a conviction on sufficiency-of-the-evidence review. See United States v. Powell, 469 U.S. 57, 62, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (reaffirming that "[c]onsistency in the verdict is not necessary" (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932))); United States v. Mussare, 405 F.3d 161, 167 (3d Cir. 2005) ("[T]here is no requirement that a jury's verdict be consistent.").
If, as Martinez presumes, the jury determined that the sexual act was consensual as it considered the rape charge, it was not beholden to that conclusion when it considered the kidnapping charge. We, in turn, may not reverse purely because the jury's resolution of the historical facts might seem inconsistent:
[A] criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence under-taken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt.
This review should be independent of the jury's determination that evidence on another count was insufficient. The Government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilty beyond a reasonable doubt. We do not believe that further safeguards against jury irrationality are necessary.
Powell, 469 U.S. at 67, 105 S.Ct. 471 (emphasis added, citations omitted); see also United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000) ("In a single, multi-count trial, acquittal on one or more counts does not preclude conviction on other counts based upon the same evidence, as long as that evidence is legally sufficient to support a finding of guilt on the count(s) of conviction." (emphasis added)); United States v. Church, 955 F.2d 688, 695 (11th Cir. 1992). Thus, while the jury found that the Government had not proved the crimes of aggravated rape and unlawful sexual contact beyond a reasonable doubt, it was free to use Harvey's testimony that Martinez raped her when considering whether he had formed the specific intent to rape at an earlier point in time. See United States v. Sriyuth, 98 F.3d 739, 747 (3d Cir. 1996) (holding evidence of sexual assault relevant to show defendant's motive in kidnapping victim); United States v. Bradshaw, 690 F.2d 704, 708 (9th Cir. 1982) ("This Court has previously held evidence of sexual relations admissible because of its relevance to motive in a kidnapping case."). In sum, the jury's acquittal on the other counts "is irrelevant to our singular focus on and determination of whether the evidence adduced at trial supports" the conviction on Count Three. United States v. Veal, 153 F.3d 1233, 1253 (11th Cir. 1998).
Similarly, although it acquitted Martinez of unlawful possession of a deadly weapon during a crime of violence, the jury was entitied to accept Harvey's testimony that Martinez used a gun to carry out the kidnapping.
Viewing all of the evidence in the light most favorable to the Government, we conclude that it was sufficient to support a finding that Martinez possessed an intent to rape Harvey during the car ride. Within a span of several minutes, Martinez took Harvey against her will to a secluded area, brandished a firearm and threatened her in doing so, immediately demanded that she have sex with him (a demand she refused), whereupon he ordered her out of the car before driving away. Additionally, Dawn Callwood, Martinez's unrelated "aunt," testified that some time after the incident, Martinez called her and admitted that "something just happened . . . [something just came over him. . . . [Something just popped . . . just went pop in his head." JA 116. Callwood also testified that Martinez attempted to "justify himself' to her, id., and that he admitted that "something happened to Chenae." JA 117. Corroborating this account was Faye Martinez's testimony that the defendant called her after the incident and, "soundfing] very afraid," said that he knew Harvey's father and uncle were looking for him, but that it was "not going to go down like that." JA 217.
Drawing all reasonable inferences in the Government's favor, the evidence surrounding the sexual encounter, along with Martinez's own statements and the evidence of his aggressive, threatening, over-bearing, and violent conduct, was sufficient to sustain the jury's determination of Martinez's specific intent at the time of the kidnapping. See Ratzlaf v. United States, 510 U.S. 135, 149 n. 19, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994) ("A jury may, of course, find the requisite knowledge on [the] defendant's part by drawing reasonable inferences from the evidence of [the] defendant's conduct. . . .").
* * * For these reasons, we conclude that the evidence was sufficient to support the kidnapping for rape conviction.
IV. Martinez claims that the Government violated his right to due process by questioning him on his post-arrest silence, in violation of the rule announced in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The facts underlying this claim are as follows. Martinez testified in his own defense that earlier in the day on June 16, 2003, Harvey asked him for $500 or $600 and said that if he gave her the money she "would make it worth [his] while." JA 338-39. Martinez testified that he understood this to mean that Harvey "wanted to have sex." JA 339. He then testified: (1) that the sexual episode later that evening was consensual; (2) that Harvey thereafter demanded the money she had requested; (3) that she threatened to tell everyone that he had raped her if he did not provide the money; and (4) that when he did not give her the money, she accused him of rape.
The Government sought to dispel Martinez's exculpatory account on cross-examination. The prosecutor first asked: "Did you make a statement to Officer Berrios about what you told us here today?" JA 350. The trial court sustained defense counsel's objection, and before Martinez could answer, it interjected, "You don't have to answer." Id. After the prosecutor pressed Martinez as to whether Harvey had ever before requested money from him (Martinez admitted that she had not), this disjointed exchange ensued:
Q. Did you ask Chenae if she had some type of problem that she would need this 5 or $600?
A. No, sir.
Q. Did you tell [Faye] Martinez that Chenae might be in some trouble and needed 5 or $600?
A. No, sir.
Q. Did you tell your mother that Chenae demanded 5 or $600 from you?
[Defense Counsel]: Objection, Your Honor.
The Court: Overruled.
Q. Did you tell your mother that Chenae was trying to shake you down for 5 or $600?
[Defense Counsel]: Objection as to shake down.
The Court: Sustained.
Q. Did you tell your mother that Chenae demanded 5 or $600 from you and said she would make it worth your while?
A. No, sir.
Q. Did you tell anyone other than today that Chenae demanded 5 or $600 from you?
[Defense Counsel]: Objection, your Honor.
The Court: Overruled.
Q. Other than your attorney —
[Defense Counsel]: Objection, your Honor.
The Court: Sustained as to the attorney.
Q. Did you tell anyone —
[Defense Counsel]: Objection. May we approach, Your Honor?
The Court: You may.
JA 351-53.
At sidebar, defense counsel objected to the question whether Martinez had told "anyone" his story, but the trial court was unconvinced:
[Defense Counsel]: Your Honor, the defendant has a right not to say anything to anyone, your Honor; has a right to remain silent. He has a right to privilege against selfincrimination. He has a right not to say anything.
The Court: He has a right not to say anything to law enforcement officers, but — as I see it, the object of the government's [questions] is to indicate that the defendant recently made up the story.
[Defense Counsel]: Well, that may very well be so if that's their object. If they can get it in, they can't get it in through this kind of questioning. He has a right not to say anything to anyone.
The Court: I understand he has a right not to say anything to anyone, but they can ask him if he said it.
JA 353. After the sidebar, this colloquy followed:
Q. Sir, did you tell anyone that Chenae demanded 5, $600 from you?
A. Excuse me, sir?
Q. Did you tell anyone that Chenae demanded 5 to $600 from you?
A. My attorney.
[Defense Counsel]: I continue my objections.
The Court: Yes.
JA 354. The Government then moved to another line of questioning.
During his summation, the prosecutor challenged Martinez's story that Harvey had falsely implicated him of rape. The prosecutor emphasized Martinez's admissions that he had never before flirted with Harvey and that Harvey had never before requested money from him. Accordingly, the prosecutor argued, it would be nonsensical to believe that Harvey sought from her cousin money in exchange for sex out of the blue. The prosecutor never referred, however, to the fact that Martinez had proffered his exculpatory account for the first time at trial, nor did he mention Martinez's post-arrest silence more generally.
"[P]articularly concerned" with the breadth of the prosecutor's questions whether Martinez had ever told "anyone" his exculpatory account, the Appellate Division held that the Government had violated Doyle. JA 578. But the court concluded that the constitutional error was harmless because "overwhelming" evidence existed such that "the jury could have determined that Martinez [took] Harvey away by threat or force with the intent to rape her." JA581.
Our review of this constitutional question is plenary. Gov't of the V.I. v. Davis, 561 F.3d 159, 163 (3d Cir. 2009). As we explain below, violations of Doyle are subject to harmless error analysis. Accordingly, we ask first whether a violation occurred and, if it did, we ask whether it had an effect on the jury's verdict beyond a reasonable doubt. See id. We share the Appellate Division's concern with some of the prosecutor's questions. We also agree, albeit for different reasons, that any Doyle violation was harmless beyond a reasonable doubt.
A. Once a criminal defendant receives the prophylactic warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it is improper under Doyle "for a prosecutor to cause the jury to draw an impermissible inference of guilt from a defendant's post-arrest silence." Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir. 1998). This is so because 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. Davis, 561 F.3d at 163-64 (quoting Wainwright v. Greenfield, 474 U.S. 284, 290-91, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986)); United States v. Johnson, 302 F.3d 139, 146 (3d Cir. 2002). Because a defendant's post-Miranda warning silence could be nothing more than an invocation of his right to silence, it would be fundamentally unfair to permit a breach of that assurance by allowing impeaching questions as to why he failed to give an exculpatory account to the police after receiving the warnings. See Davis, 561 F.3d at 163.
The Government argues that Doyle is limited only to a defendant's silence immediately after receiving Miranda warnings, not to his general silence in the lead-up to trial. The Government argues that this case is controlled instead by Raffel v. United States, 271 U.S. 494, 496, 46 S.Ct. 566, 70 L.Ed. 1054 (1926) (holding that Fifth Amendment "immunity from giving testimony is one which the defendant may waive by offering himself as a witness"), and that inquiry into Martinez's general pretrial silence was therefore proper. We rejected an identical argument in Davis, and therefore we need not address the claim at length here. See 561 F.3d at 164-65; accord Hassine, 160 F.3d at 947-49; United States v. Baiter, 91 F.3d 427, 439 (3d Cir. 1996).
Not every reference to a defendant's silence, however, results in a Doyle violation. Where "no governmental action induce[s] the defendant to remain silent," Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Miranda-based? fairness rationale does not control. Consequently, the Government permissibly may impeach a defendant's testimony using his pre-arrest silence, Jenkins v. Anderson, 441 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); his post-arrest, pre-Miranda warning silence, Fletcher, 455 U.S. at 605-07, 102 S.Ct. 1309 ; and any voluntary post-Miranda warning statements, Anderson v. Charles, 447 U.S. 404, 408-09, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980). Additionally, under Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), "there may be no Doyle violation where the trial court sustains an objection to the improper question and provides a curative instruction to the jury, thereby barring the prosecutor from using the silence for impeachment." Davis, 561 F.3d at 164 (citing Greer, 483 U.S. at 764-65,107 S.Ct. 3102).
The Government argues that Martinez failed to lay an evidentiary foundation that he received Miranda warnings, and accordingly that no Doyle violation occurred under Fletcher. It is the Government, however, that bears the burden of establishing that no Miranda warnings were given if post-arrest silence is to be used. United States v. Cummiskey, 728 F.2d 200, 206 (3d Cir. 1984). Because it does not ultimately affect our disposition, we will assume arguendo that Martinez received the warnings.
Having scrupulously reviewed the trial transcript, we share the Appellate Division's concern with some of the Government's questions. Referring to Martinez's exculpatory account, the prosecutor first asked: "Did you make a statement to Officer Berrios about what you told us here today?" JA 350. The prosecutor clearly sought by this question to undermine Martinez's story by highlighting his failure to tell the officer that same version at an earlier point in time. We cannot say with certainty, however, that the question was improper, because a crucial ambiguity exists in the record regarding Officer Berrios. Harvey's testimony on cross-examination reveals circumstantially that the officer took her statement at the hospital two days after the incident. JA 181-85, 189. But Officer Berrios did not testify at trial, and the record does not disclose what role he played in Martinez's arrest, or whether Martinez's failure to give the exculpatory story to him occurred before or after the arrest, or before or after Miranda warnings had been given.
Accordingly, we cannot discern whether the prosecutor's question was permissible under Jenkins, Fletcher, or Anderson on the one hand, or whether it violated Doyle on the other. The context of the question and the lack of relevant evidence underlying it give us pause, and our analysis below is mindful of these uncertainties. Unable to answer definitively whether the question violated Doyle, we turn to the questions that Martinez centrally challenges on appeal — those in which the prosecutor asked whether Martinez had ever told "anyone" his exculpatory account.
If the question was improper, the Supreme Court's decision in Greer does not cure it. While defense counsel immediately and successfully interposed an objection to the question (thus precluding Martinez's silence from actually being submitted to the jury, see Johnson, 302 F.3d at 147), the trial court failed to provide a curative instruction to the jury that it was not to consider Martinez's post-arrest silence against him. We have emphasized on several occasions the importance of such an instruction in order for Greer to apply. See Davis, 561 F.3d at 164; Johnson, 302 F.3d at 148 n. 10; Hassine, 160 F.3d at 948. Additionally, the prosecutor went on to ask other potentially problematic questions.
Martinez does not take issue with the questions regarding whether he told his story to Faye Martinez or his mother, and we therefore do not address them.
We also share the Appellate Division's concern that these questions "were overly broad and [their] breadth and obscurity affect the applicable review. . . ." JA 578. Because the prosecutor placed no personal or temporal specifications on the questions, they might well have been construed as targeting Martinez's post-arrest, post- Miranda warning failure to proffer his story to the police. See United States v. Dodd, 111 F.3d 867, 869 (11th Cir. 1997) (per curiam) ("A comment is deemed to be a reference to a defendant's silence if . . . it was of such a character that the jury would naturally and necessarily understand it to be a comment on a defendant's silence." (quotation marks omitted)).
The Appellate Division was hesitant to construe such open-ended and ambiguous questions against Martinez. So are we. Under the circumstances, we think that the prosecutor's questioning in this case approached the constitutional line, and likely crossed it. However, we need not decide definitively whether the Government's questions violated Doyle, because we will affirm the District Court's judgment even assuming that they did. See United States v. Rodriguez, 43 F.3d 117, 122 (5th Cir. 1995) (assuming for the sake of argument that a Doyle violation occurred where the "prosecutor's questions were sufficiently broad as to be construed as commentary on [the defendant's] failure to come forward with his alibi (1) prior to arrest, (2) immediately after arrest and Miranda warnings . . ., and (3) during the time period prior to trial but following his arrest"); cf. United States v. Baiter, 91 F.3d 427, 440 (3d Cir. 1996) (assuming arguendo that the prosecutor's questions violated Doyle and proceeding to harmless-error analysis).
B. We hold that any Doyle violation here was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (holding that a constitutional error is harmless where it can be "prove[d] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained"); Baiter, 91 F.3d at 440 ("The Supreme Court has held `that Doyle error fits squarely into the category of constitutional violations which [it] has characterized as trial error.'" (quoting Brecht v. Abrahamson, 507 U.S. 619, 629, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)) (alteration in Baiter)).
Before explaining why, we pause to note that the Appellate Division's analysis suffers from the same deficiencies that we recently identified in Davis. The court held in this case that any Doyle error was harmless because "the evidence of Martinezes] guilt . . . was overwhelming" and accordingly that "even without the prosecutor's inappropriate question, the jury could have determined that Martinez [committed kidnapping for rape]." JA581. By comparison, in Davis, the Appellate Division held that the Doyle error was harmless because there existed "significant evidence from which the jury could have found guilt." 561 F.3d at 165 (quotation marks omitted). Rejecting that formulation, we reminded the court that the relevant question under Chapman "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Id. (quoting United States v. Korey, 472 F.3d 89, 96 (3d Cir. 2007)). Our ensuing explanation applies equally here:
[W]e are unsatisfied with this conclusion insofar as the Appellate Division focused on whether the evidence was sufficient to convict despite the error, as opposed to whether there was a reasonable possibility that the error contributed to the jury verdict.
See Satterwhite v. Texas, 486 U.S. 249, 258-59,
108 S.Ct. 1792,
100 L.Ed.2d 284 (1988) ("The question, however, is not whether the legally admitted evidence was sufficient . . . but rather, whether the [Government] has proved `beyond a reasonable doubt that the error complained of did not contribute to
the verdict obtained.'" (quoting
Chapman, 386 U.S. at 24,
87 S.Ct. 824)).
Id. at 166. We are compelled to reiterate that constitutional harmless-error analysis is not merely a review of whether the jury "could have" returned a verdict absent the constitutional error. Such an analysis improperly conflates sufficiency-of-the-evidence review with the appropriate Chapman standard. We are similarly unconvinced — as we were in Davis, see id. — that the evidence proffered against Martinez can be characterized as "overwhelming." Martinez did not dispute at trial that he took Harvey to the Salt River in his car, nor did he deny that he had sexual intercourse with her. Consequently, the central issue in the case concerned whether the episode was consensual, and thus it turned on the credibility of Harvey, Dawn Callwood, Faye Martinez, and the defendant. Although Callwood and Faye Martinez both testified that the defendant called them after the incident and implicated himself (thus corroborating Harvey's account and strengthening the Government's case), these witnesses were subject to rigorous cross-examination concerning their possible biases. See id. (highlighting the "close associations" between the three eyewitnesses whose testimony purportedly provided "overwhelming evidence" against the defendant). At bottom, a critical issue in the case largely required the jury to choose sides in a classic he-said, she-said contest. While we agree that the evidence was solid, we cannot agree with the Appellate Division that overwhelming evidence against Martinez alone rendered any error harmless.
The foregoing does not inexorably lead us to doubt that the prosecutor's questions played no part in the verdict here. While many of our Doyle cases focus on the quantum of evidence against the defendants, see, e.g., Baiter, 91 F .3d at 440, harmless-error analysis must, by necessity, take into account the totality of the circumstances. We have never held, nor do we now, that the amount of incriminating evidence is the only factor implicated in a Doyle harmless-error analysis. Cf. Rodriguez, 43 F.3d at 123 (analyzing whether Doyle error was harmless in light of "the entire record"); United States v. Thomann, 609 F.2d 560, 566 (1st Cir. 1979) ("In the light of all the circumstances in this case . . ., we find that . . . [the error] was harmless and not grounds for reversal"). Under all of the circumstances presented by this case, two related factors ultimately convince us beyond doubt that any error did not affect the jury's verdict.
First is the garbled nature of the challenged colloquy between court, counsel, and witness. Compare United States v. Agee, 597 F.2d 350, 359 (3d Cir. 1979) (en banc) (finding any Doyle error harmless where the challenged question was ambiguous, and explaining that it was unlikely the jury "understood and recollected" the question as anything more than an innocuous reference), with Davis, 561 F.3d at 167 (finding Doyle error not harmless where the prosecutor's questions directly and clearly undermined the plausibility of the defense), and United States v. Curtis, 644 F.2d 263, 270-71 (3d Cir. 1981) (finding Doyle violation not harmless where the improper questions were "neither isolated nor ambiguous").
The challenged questions before the sidebar — which we have already described as overly broad and ambiguous — were either interrupted or immediately followed by objections from defense counsel (some the trial court sustained, some it overruled), preventing the jury from learning or inferring the answers to the questions and thus compounding the ambiguity surrounding them. The questions posed and the answers given after the sidebar were no clearer. Martinez himself needed the prosecutor to repeat his question, and he then referenced his attorney, provoking yet another immediate objection (on an altogether different basis), before the prosecutor promptly moved to another subject. The prosecutor's open-ended questions and attempted questions, the barrage of intermittent objections and interruptions, the varying responses by the trial court, and the partial answers by the defendant all combine to obfuscate further what was already an unclear allusion to Martinez's post- Miranda warning silence. Having studied the transcript, we believe it is exceedingly unlikely that the jury was able to arrive at a negative inference based on the oblique and muddled manner in which Martinez's silence was put before them.
Second, while the challenged questions cannot be said to be "isolated" (as the prosecutor asked a number of times whether Martinez had told his story to "anyone"), see Curtis, 644 F.2d at 270-71; Agee, 597 F.2d at 359, the questions were plainly not a focal point of the cross-examination. In context, the questions were far from flagrant violations of Doyle, but instead came and went in relative passing. See Davis, 561 F.3d at 166 (looking to "the severity of the Doyle violation" when conducting the harmless-error analysis); United States v. Scott, 47 F.3d 904, 907 (7th Cir. 1995) (finding Doyle error harmless where references to post-arrest silence "were limited in their intensity and frequency").
The challenged questions here covered only a small fraction of the furious cross-examination covering multiple subjects and spanning twenty pages of the trial transcript, and were hardly the type of frontal assaults on post-arrest, post- Miranda warning silence that our Court and other courts have held not to be harmless. Additionally, the prosecutor not once referred to Martinez's post-arrest silence or the prior questions about it during summation. Instead, he attacked the veracity of the defendant's account only on the basis that it lacked consistency with his and Harvey's relationship and their conduct before the incident. This fact, in our view, is critical. Compare Scott, 47 F.3d at 907 (finding single improper reference during summation to be harmless), and Agee, 597 F.2d at 359 (noting that counsel did not refer during summation to an arguably improper reference to post-arrest silence), with Davis, 561 F.3d at 162, 167 (finding no harmless error where prosecutor repeatedly emphasized the defendant's post-arrest silence during summation), and United States v. Cummiskey, 728 F.2d 200, 204 (3d Cir. 1984) (finding Doyle error not harmless, in part because "[t]he prosecutor emphasized Cummiskey's silence . . . both during the trial and extensively during closing argument." (emphasis added)).
We recognize, of course, that in this case the trial court did not give an immediate curative instruction, for it did not recognize the potential problem that the questions posed. See Davis, 561 F.3d at 167 (explaining that "the absence of a curative instruction by the Territorial Court likely left the jury with the false impression that the prosecutor's references to Davis's silence . . . were appropriate"). We reiterate the manifest importance of immediate curative instructions whenever a defendant's post-Miranda warning silence is mentioned before the jury. We also emphasize that many Doyle violations will not be harmless precisely because the court did not provide an instruction. It is not the case, however, that a court's failure to give a curative instruction precludes in all cases satisfaction of the Chapman harmless-error standard. It is the vague and ultimately inconsequential nature of the violation that compels the result in this case.
* * * The challenged colloquy here was ambiguous and disjointed, and was riddled with interruptions and half-answers. The prosecutor did not highlight Martinez's silence, and after a passing moment he moved on, never referencing the point again. Under all of the circumstances here, we conclude that any error played no role in the jury's verdict. It was therefore harmless.
V. Martinez asserts two final claims on appeal: (1) that the trial court committed reversible error by admitting implicit and prejudicial hearsay during Harvey's testimony; and (2) that the trial court's jury instructions with respect to the kidnapping charge were impermissibly incomplete. A thorough review of the record convinces us that these claims are entirely without merit, and we reject them without further discussion.
VI. For the foregoing reasons, we will affirm the order of the Appellate Division.