United States v. Waller

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-1321
_____________

UNITED STATES OF AMERICA

v.

MICHAEL TYRONE WALLER,
Appellant

On Appeal from the United States District Court
for the Western District of Pennsylvania
(Crim. No. 08-cr-00423-001)
District Judge: Hon. Alan N. Bloch

Argued January 25, 2011
_________________

Before: FUENTES and CHAGARES, Circuit Judges, and
POLLAK,* District Judge.

(Filed: August 16, 2011)

*
The Honorable Louis H. Pollak, Senior United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.
Lisa B. Freeland, Esq.
Renee Pietropaolo, Esq. (Argued)
Office of the Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Attorneys for Appellant

Robert L. Eberhardt, Esq.
Rebecca R. Haywood, Esq. (Argued)
Ross E. Lenhardt, Esq.
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Attorneys for Appellee

__________________

OPINION
__________________

CHAGARES, Circuit Judge.

A jury impaneled in the Western District of
Pennsylvania convicted Michael Tyrone Waller of being a
felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1), possessing heroin with the intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and possessing
a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A)(i). On appeal, Waller

2
contends that the District Court committed reversible error in
administering its instructions to the jury. We agree and will,
therefore, vacate the judgment of conviction and remand the
case to the District Court for a new trial.

I.

At 3:30 in the morning on March 31, 2008, Officers
Saldutte and Matson, on patrol in their police cruiser, pulled
behind a Cadillac that was stopped at a red light in a high
crime area of Pittsburgh, Pennsylvania. The officers
observed that the Cadillac had a burned out brake light and
multiple obstructions hanging from its rear view mirror, both
of which are ―purported violations of the Motor Vehicle
Code.‖ Appendix (―App.‖) 149. Accordingly, the officers
activated emergency lights and sirens, and the Cadillac
immediately pulled over. From his seat in the police cruiser,
Officer Saldutte saw Waller, the Cadillac‘s passenger, turn
around and look over his left shoulder in the officers‘
direction. When Waller turned back to face the windshield,
he leaned over to his left as if he was ―reaching down into his
waistband or the middle of the seat.‖ App. 153. Officer
Saldutte believed he was retrieving or concealing a firearm.
The driver of the vehicle, DeAngelo Hays, was also moving
around inside the car.

Officer Saldutte approached the driver‘s side of the
Cadillac while Officer Matson remained in the cruiser.
Officer Ewing, who observed the stop from his own patrol car
and came to assist, approached the passenger‘s side. Hays
appeared nervous as Officer Saldutte explained the reason for
the stop to him, so Saldutte asked him to step out of the car to

3
undergo a pat-down. Saldutte found no weapons, however,
and promptly instructed Hays to reenter the car.

In the meantime, Officer Ewing had detected a bulge
under Waller‘s clothing at his right hip. He therefore asked
Waller to step out of the car so that he could conduct a pat-
down. Upon feeling a weapon under Waller‘s waistband,
Officer Ewing yelled ―gun‖ to get the attention of his fellow
officers. This excited Waller, causing him to ―push off the
vehicle‖ and ―tustle‖ with Officer Ewing. App. 176. In an
attempt to subdue the now excited Waller, Officer Ewing
wrapped his arms around Waller‘s waist. Officer Saldutte
came over to assist, grabbing Waller‘s right arm to prevent
him from reaching for the gun. Officer Ewing then did a leg
sweep, causing all three men to fall to the ground. While on
the ground, Officer Saldutte yelled to Officer Ewing that he
believed Waller to be attempting to reach for the gun in his
waistband. Perceiving this as a threat, Officer Ewing
―delivered two elbow strikes to [Waller‘s] face,‖ and Officer
Saldutte ―delivered a series of punches to the right side of
Waller‘s face.‖ App. 160-61, 177. At that point, Waller
capitulated stating, ―okay, I‘m done.‖ App. 161. He
submitted to arrest without further incident.

In the course of conducting a search incident to arrest,
Officer Ewing found a .38 caliber revolver, loaded with six
rounds of ammunition, in the waistband of Waller‘s pants.
From Waller‘s jacket pocket, Officer Ewing recovered a
plastic baggie containing fifty-two individual stamp bags of
heroin marked ―Shoot, Shoot Them,‖ App. 162, 171, which
were bundled into four groups of ten and one group of twelve.
The police did not find any other indicia of drug use, such as
needles, syringes, bottle caps, spoons, lighters, or track

4
marks, on Waller. Neither did they find any other indicia of
drug distribution, such as United States currency, a cell
phone, or owe sheets — lists typically used by drug dealers to
keep record of which customers owe them money at any
given time.1 At the time of Waller‘s arrest, Officer Saldutte
believed Waller‘s eyes and skin color looked normal. And
neither Officer Ewing nor Officer Matson believed Waller to
have been under the influence of drugs. Officer Ewing,
however, did describe Waller‘s actions as ―[m]ore slow.
Attitude was like slow speech.‖ App. 180. The officers did
not observe Waller selling heroin, and the Government never
offered evidence that he had done so at any time. The total
weight of the heroin seized from Waller was 1.63 grams. To
conceptualize the amount, defense counsel noted that a packet
of Equal sugar weighs one gram.

The Government charged Waller with possession of a
firearm by a convicted felon, possession with intent to
distribute heroin, and possession of a firearm in furtherance
of a drug trafficking crime. At trial, Waller admitted guilt as
to the first count, and he admitted that he possessed the heroin
in question. As such, the only contested issue was whether
Waller possessed the heroin (and, therefore, the gun) in
furtherance of a drug trafficking crime.

To prove that Waller had the requisite intent to deliver
the heroin the Government relied on the expert testimony of
Pennsylvania State Police Trooper Michael Warfield.
Trooper Warfield explained that heroin is typically packaged

1
Similarly, there was no evidence that the police ever
searched Waller‘s residence to determine whether he kept
paraphernalia typical of drug dealers there.

5
and sold in glassine baggies, called stamp bags. Heroin can
be snorted or it can be heated into a liquid, placed into a
syringe and injected into a vein. Although Trooper Warfield
was not sure how snorting heroin feels in comparison to
injecting it, he opined that ―it‘s not as strong of an effect.‖
App. 215. And he believed that addicts progress from
snorting to shooting heroin. He further testified that heroin
users gradually need increasing amounts of heroin to achieve
the same high. Finally, he noted that an addict who goes
without heroin for any length of time becomes physically
sick, whereas addicts who have recently taken the drug
generally possess a calm demeanor.

Trooper Warfield estimated that each stamp bag in
Waller‘s possession would sell for between $10.00 and
$20.00, making the total value of the heroin found on his
person approximately $500.00 to $1,000.00. Trooper
Warfield stated that he had ―never met no one who was
addicted to heroin to have fifty-two bags‖ on him at one time.
App. 243-44. Nevertheless, he acknowledged that addicts can
use anywhere from five to ten bags a day. Thus, a weeks‘
worth of heroin for one addict could be between thirty-five
and seventy stamp bags, and there were two people in the car.
Trooper Warfield further stated that heroin addicts do not
commonly possess firearms. But he later qualified this
testimony, explaining that addicts often have firearms in order
to trade them for drugs. In contrast, he stated, drug dealers
frequently carry loaded firearms for protection. Lastly,
Trooper Warfield opined that a dealer would not typically
carry his cutting agents and owe sheets with him when out on
the streets.

6
 After hearing this evidence, the jury returned a guilty
verdict on each of the three counts. This appeal of the
conviction timely followed.

II.

The District Court had jurisdiction over this action
pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction
over the District Court‘s final judgment of conviction
pursuant to 28 U.S.C. § 1291.

On appeal, Waller asserts that the District Court
committed reversible constitutional error in administering its
jury instruction on the issue of intent. Where, as here, a party
has timely objected at trial to a jury instruction given by the
district court, our review of the legal standard expressed in
the instruction is plenary. United States v. Jimenez, 513 F.3d
62, 74 (3d Cir. 2008). Should we deem the instruction given
to be legally proper, we review the district court‘s refusal to
give any other particular instruction only for an abuse of
discretion. Id. In so conducting our review, ―we consider the
totality of the instructions and not a particular sentence or
paragraph in isolation.‖ Id. at 74-75 (quotation marks
omitted).

We subject any constitutional defect in the jury
instructions to a harmless error analysis. By this standard, a
constitutional error requires reversal unless it can be
―prove[d] beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.‖
Chapman v. California, 386 U.S. 18, 24 (1967). As we have
previously made clear, ―the relevant question under Chapman
is not whether, in a trial that occurred without the error, a

7
guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely
unattributable to the error.‖ Gov‘t of the V.I. v. Martinez,
620 F.3d 321, 337 (3d Cir. 2010) (quotation marks omitted).

III.

A.

The Government contended at trial that Waller was a
low-level drug dealer who possessed the 1.63 grams of heroin
found on his person for the purpose of selling it to others.
The defense maintained, however, that Waller was merely a
drug addict, who intended to make personal use of the 1.63
grams of heroin that he admittedly possessed. The defense
thus proceeded on the theory that Waller was not guilty of
possessing the heroin with the intent to deliver; rather, he was
guilty only of the lesser-included offense of simple
possession. And if the jury agreed that he was guilty only of
simple possession, it must further conclude that he had not
possessed the gun in furtherance of a drug trafficking crime.
Having no direct evidence bearing on the only contested issue
at trial — Waller‘s intent — both parties relied entirely on
circumstantial evidence to support their theories of the case.

At the conclusion of the evidence, the District Court
provided the jury with the following instruction on intent,
with which Waller takes issue:

Intent ordinarily may not be
proved directly because there is not a
way of fathoming or scrutinizing the
operation of the human mind. However,

8
 you may infer a defendant‘s intent from
all of the surrounding circumstances.
For example, in determining whether a
defendant has had the intent to distribute
controlled substances, you may consider,
among other things, the quantity of the
controlled substances involved and the
amount of cash involved. You may also
consider any statements made or omitted
by the defendant, as well as all other
facts and circumstances in evidence
which demonstrate the defendant‘s state
of mind.

App. 267 (emphasis added). Waller contends that, in
permitting the jury to consider any ―statements made or
omitted by the defendant,‖ the District Court improperly
invited the jury to infer intent from Waller‘s post-arrest, post–
Miranda2 warnings silence, in violation of his right to due
process under the Fifth Amendment and the rule announced
in Doyle v. Ohio, 426 U.S. 610, 619 (1976).3 For the reasons
set forth below, we agree.

2
Miranda v. Arizona, 384 U.S. 436, 467-73 (1966).
3
The Government interprets Waller‘s argument to encompass
both his right to post-arrest, post-Miranda silence and his
right to silence at trial. This is not so. Waller concedes that
the District Court‘s instructions, when viewed in their
entirety, made clear to the jury that Waller had an absolute
right not to testify or offer any evidence at trial. Waller
argues only that the District Court‘s instructions improperly

9
 Before we turn to the merits of Waller‘s constitutional
claim, however, we address the favorable comparisons that
have been drawn between the instruction given by the District
Court and two different model instructions on intent. The
Government suggests that these comparisons are of use in
evaluating the propriety of the District Court‘s instruction in
this case. We disagree.

First, we turn to the District Court‘s comparison of its
own instruction to this Court‘s Pattern Instruction on intent.
Waller timely objected to the challenged instruction at trial
and, in so doing, proposed a curative instruction to clarify
that, in referring to ―statements made or omitted,‖ the District
Court intended to refer only to statements and omissions from
statements that the defendant made before his arrest.4 The

permitted the jury to consider his failure to make a statement
prior to trial. See Waller Br. 13, 16, 20.
4
Specifically, Waller suggested that the District Court clarify
that, by the phrase ―statements made or omitted,‖ the court

refers only to statements and omissions
from statements which a defendant
makes before his arrest. As you
deliberate, you may not consider as
evidence of guilt on Count Two the fact
that the defendant did not make a
statement following the March 31, 2008
arrest. Just as the defendant has a right
to remain silent and not testify at trial,
the defendant has a right to remain silent
out of Court. And the fact that the

10
District Court, however, declined to alter its instruction,
reasoning that the instruction given was ―very similar to the
Third Circuit model charge‖ on intent. App. 278.

The District Court is indeed correct in its assertion that
the Third Circuit‘s Pattern Instruction on intent is only
minimally different from the challenged instruction in this
case. But that minimal difference is of great legal
significance. The Pattern Instruction conspicuously refrains
from employing the very language that Waller argued was
objectionable in the District Court‘s instruction. Specifically,
our Pattern Instruction provides:

[T]o determine [the defendant‘s] state of
mind (what [the defendant] intended or
knew) at a particular time, you may
consider evidence about what [the
defendant] said, what [the defendant] did
and failed to do, how [the defendant]
acted, and all other facts and
circumstances shown by the evidence
that may prove what was in [the
defendant‘s] mind at that time.

Third Circuit Model Criminal Jury Instructions, ch. 5.01
(emphasis omitted). Thus, the Pattern Instruction permits the

defendant did not make a statement,
either in or out of Court, may not be
considered by you or even discussed in
your deliberations.

App. 277-78.

11
jury to take into account only those statements actually made
by the defendant, as well as the defendant‘s failures to act,
both of which are decidedly proper for the jury to consider in
determining whether a defendant possessed the necessary
intent to commit the crime charged. See, e.g., United States
v. Mendez-Zamora, 296 F.3d 1013, 1018 (10th Cir. 2002)
(―To suggest that a person‘s state of mind can be inferred
from his omissions (as well as his acts) is merely to utter
common sense. We fail to see how the instruction reduces
the government‘s burden to prove all elements of the offense
beyond a reasonable doubt or how it in any way compels a
defendant to incriminate himself.‖). The Pattern Instruction
does not invite the jury to consider statements omitted by the
defendant, or otherwise comment on the defendant‘s failure to
speak. Accordingly, any similarities that may exist between
the District Court‘s instruction and this Court‘s Pattern
Instruction are immaterial to whether the challenged portion
of the instruction employed in this case raises constitutional
concerns.

Second, the Government asserts that the District
Court‘s instruction cannot be improper because, in United
States v. Garrett, 574 F.2d 778, 783 (3d Cir. 1978), we
approved the language of the model instruction contained in 1
Devitt & Blackmar, Federal Jury Practice and Instructions:
Criminal, § 14.13 (1977), on which the District Court‘s
instruction was based. Gov‘t Br. 16. This argument, too, is
unavailing.

In Garrett, we considered the question of whether an
instruction on intent, which created a presumption that a
defendant intended the natural and probable consequences of
his actions, impermissibly shifted the burden to the defendant

12
to prove that he was not guilty. See Garrett, 574 F.3d at 782.
And in so considering the challenged portion of that
instruction, we suggested only that the language from Devitt
& Blackmar § 14.13 ―may be of some help to trial judges in
avoiding the use of instructions on intent that might be
construed by a jury to shift the burden of proof to the
defendant in a criminal case.‖ Id. at 783. We were not asked,
and thus we did not address, whether the Devitt & Blackmar
instruction would be of the same help to trial judges in
preserving an accused‘s right to silence. Thus, our decision
in Garrett contributes little of value to the present analysis.

With these issues settled, we turn to the merits of
Waller‘s constitutional claim.

B.

The Fifth Amendment provides that ―no person…shall
be compelled in any criminal case to be a witness against
himself.‖ U.S. Const. amend. V. In order to give full effect
to this privilege against self-incrimination, the Supreme Court
has made clear that the Fifth Amendment permits neither
comment by the prosecution on the accused's silence at trial
nor instructions by the court that such silence is evidence of
guilt. Griffin v. California, 380 U.S. 609, 614-15 (1965); see
also United States v. Isaac, 134 F.3d 199, 206 (3d Cir. 1998).
The Fifth Amendment necessarily so forbids because any
other rule would impermissibly penalize the exercise of the
constitutional privilege; it would ―cut[] down on the privilege
by making its assertion costly.‖ Griffin, 380 U.S. at 614.

As a means of safeguarding the privilege against self-
incrimination prior to trial, the Supreme Court announced, in

13
Miranda v. Arizona, the now ubiquitous rule that an accused
must be warned, upon being taken into custody, ―that he has a
right to remain silent, that any statement he does make may
be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed.‖ 384
U.S. at 444. The Supreme Court subsequently made clear in
Doyle v. Ohio, 426 U.S. 610, 619 (1976), that once these
prophylactic Miranda warnings have been given, the Due
Process Clause forbids the ―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 must be 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.‖ Martinez, 620 F.3d
at 335. And ―[b]ecause a defendant‘s post-Miranda
warning[s] 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‖ his failure to
give an exculpatory account to the police after receiving the
warnings to be invoked later as inculpatory evidence against
him. Id.

The Supreme Court‘s holding in Doyle that the
prosecutor may not cause the jury to draw an impermissible
inference of guilt based on the defendant‘s post–Miranda
warnings silence necessarily implies that the trial court is so
forbidden as well. Cf. Griffin, 380 U.S. at 613 (holding that
neither the prosecutor nor the trial court may adversely
comment on a defendant‘s silence at trial). And indeed, the
Government readily concedes that, in light of the Supreme
Court‘s admonishment in Doyle that ―[s]ilence in the wake of
[Miranda] warnings may be nothing more than the arrestee‘s

14
exercise of these Miranda rights,‖ 426 U.S. at 617, ―a jury
cannot, as a matter of due process, consider a defendant‘s
silence post-Miranda warnings[.]‖ Gov‘t Br. 24.
Nonetheless, the Government argues that the District Court‘s
instruction permitting the jury to consider ―statements made
or omitted by the defendant‖ did not violate the rule of Doyle
because it only allowed the jury to take account of Waller‘s
pre-arrest silence.5 The challenged phrase, the argument
goes, permitted the jury to consider only omissions from
statements that were in evidence. And because the evidence
presented at trial ended at the moment that Waller was
arrested, the instruction could not possibly have implicated
Waller‘s failure to make a post–Miranda warnings statement.
We disagree.

To begin, we cannot accept the Government‘s
assertion that the jury clearly would have understood the
District Court‘s instruction to refer only to omissions from
statements for which there was evidence presented at trial.
The relevant portion of the instruction told the jury that it
―may also consider any statements made or omitted by the

5
We note that this argument relies substantially on an
assumption that the use of Waller‘s pre-arrest silence as
substantive evidence of guilt would give rise to no
constitutional concerns. It is not entirely clear that this is so.
See Combs v. Coyle, 205 F.3d 269, 282 (6th Cir. 2000)
(collecting cases). Nonetheless, we need not resolve this
issue because the District Court‘s instruction is reasonably
construed as a comment on the defendant‘s post–Miranda
warnings silence, and the Government readily concedes that
any such comment by the court is constitutionally infirm.

15
defendant, as well as all other facts and circumstances in
evidence which demonstrate the defendant‘s state of mind.‖
The Government contends that the phrase ―in evidence‖
modifies the first clause of the sentence, as well as the second
clause. But the defendant did not believe the instruction to be
entirely lucid in that regard, as evidenced by his request for a
curative instruction, and neither do we. We think it at least
equally reasonable to interpret the two clauses of the sentence
to be independently operative, first inviting the jury to
consider — without any temporal limitation — all statements
that the defendant made or failed to make, then inviting the
jury to consider any other relevant facts of which it was
presented with evidence at trial.

Moreover, the fact that there was no evidence of a
post-Miranda statement presented at trial is precisely why the
instruction, which allowed the jury to consider statements that
Waller did not make, is problematic. The Government
suggests that the absence of evidence demonstrating that
Waller failed to make a post-Miranda statement somehow
operated to prevent the jurors from pondering why they were
not presented with evidence affirmatively demonstrating that
Waller did give a post-Miranda statement. But, in fact, the
absence of such evidence is likely have had quite the opposite
effect when combined with an instruction from the District
Court that expressly encouraged the jurors to speculate as to
statements that the defendant could have made, but did not.6

6
Additionally, as Waller aptly points out, it would have in
fact been error for the Government to offer into evidence any
testimony that Waller refused to make a statement after he
received Miranda warnings. See Brecht v. Abrahamson, 507
U.S. 619, 628 (1993); Doyle, 426 U.S. at 617. Thus, we

16
And though ―the inference of guilt for failure to [make a
statement] as to facts peculiarly within the accused‘s
knowledge [may be] natural and irresistible‖ to a jury,
―[w]hat the jury may infer, given no help from the court, is
one thing. What it may infer when the court solemnizes the
silence of the accused into evidence against him is quite
another.‖ Griffin, 380 U.S. at 614.

In short, the District Court‘s instruction permitted the
jury to infer that Waller had the requisite intent to deliver the
heroin from the fact that he exercised his right to remain
silent after receiving his Miranda warnings. This is precisely
what the Fifth Amendment, as explicated in Doyle, forbids.

C.

Notwithstanding the foregoing, we recognize that
―[n]ot all errors mandate reversal. When the error found is of
a constitutional nature, a court may nonetheless uphold the
conviction if the error was ‗harmless beyond a reasonable
doubt.‘‖ United States v. Korey, 472 F.3d 89, 96 (3d Cir.
2007) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279
(1993)).

Though the harmless error analysis leaves room for
certain convictions to stand, regardless of the presence of
constitutional error at trial, it places a decidedly heavy burden
on the Government to demonstrate that reversal is not
warranted. Having sustained a violation of his Fifth

cannot fathom how the absence of such evidence in the record
could bear on the propriety of the instruction given.

17
Amendment rights, Waller is entitled to a new trial unless the
Government can ―prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict
obtained.‖ Chapman, 386 U.S. at 24. In the particular
context presented here, we have said that ―[a] verdict may
still stand, despite erroneous jury instructions [on the issue of
intent], where the predicate facts conclusively establish intent,
so that no rational jury could find that the defendant did not
intend [the criminal act charged].‖ Korey, 472 F.3d at 96-97
(quotation marks omitted).

The evidence of intent presented at trial can be
summarized as follows. The prosecution posited that
Waller‘s possession of fifty-two stamp bags of heroin and a
loaded revolver indicated possession for sale, not for personal
use. The Government also relied on the expert testimony of
Trooper Warfield. Trooper Warfield estimated each stamp
bag would sell for between $10.00 and $20.00. He stated that
he had ―never met no one who was addicted to heroin to have
fifty-two bags,‖ and he opined that in his experience a user of
heroin does not commonly possess a firearm, but that a drug
dealer would carry a firearm to protect himself, his drugs and
his money. During the search incident to the arrest, the police
did not find any paraphernalia for injecting heroin
intravenously. Nor did they locate any track marks on
Waller‘s body. Based on this circumstantial evidence, the
Government argued that Waller must have possessed the
drugs for the purpose of dealing them.

The defense similarly relied on circumstantial
evidence to demonstrate that Waller intended the heroin for
personal use and not for sale. The police stopped Waller at
the end of the night and he had no U.S. currency in his

18
possession. The defense suggested that the absence of cash
undermined the Government‘s theory that he had been selling
heroin and bolstered the theory that he had just spent all of his
cash buying the heroin that he now possessed. Although
Trooper Warfield had never encountered a heroin addict with
fifty-two stamp bags in his possession, he also explained to
the jury that an addict could use five to ten bags a day. Thus,
fifty-two bags is essentially one week‘s worth of heroin for an
addict, and there were two people in the car. Trooper
Warfield also noted that good customers might be given extra
stamp bags in a bundle. One of the five bundles in Waller‘s
possession had two extra stamp bags. And although Trooper
Warfield stated that drug users do not commonly possess
firearms, he later qualified this testimony, explaining that
drug users often possess firearms in order to trade them for
drugs. Finally, the defense challenged the significance of the
fact that Waller had no paraphernalia for injecting heroin and
exhibited no track marks from heroin injections. The defense
noted that a heroin snorter would not need such paraphernalia
and neither would a snorter have track marks. Instead, the
defense pointed to the absence of evidence of packaging and
dealing paraphernalia as substantially undermining the
Government‘s theory that Waller was a dealer.

This body of wholly circumstantial evidence, viewed
in its entirety, is simply not the kind of overwhelming
evidence of guilt that would readily lead us to find that the
―guilty verdict actually rendered in this trial was surely
unattributable to the error.‖ Sullivan, 508 U.S. at 279
(emphasis omitted). It is rather easy to see how the erroneous
instruction might, in fact, have contributed to the jury‘s
verdict: in the face of equivocal evidence of Waller‘s intent,
the jurors were invited by the District Court to consider the

19
statements that he failed to make. And a juror could have
plausibly decided that, if Waller merely intended to use the
heroin rather than sell it, he would have said as much to the
police prior to trial, since he was ready and willing to admit to
this simple possession during trial. To such a juror, the fact
that Waller failed to explain his possession of the heroin after
he was arrested would be substantive evidence of his guilt. In
light of the District Court‘s instruction on intent, this juror
could reasonably have believed that such an omission on
Waller‘s part was exactly the type of substantive evidence he
or she was meant to consider.

Under such circumstances, we cannot conclude that
the District Court‘s erroneous instruction was harmless
beyond a reasonable doubt. Waller is, therefore, entitled to a
new trial.7

IV.

For the foregoing reasons, we will vacate the judgment
of conviction and remand for a new trial.

7
Waller additionally claims that he is entitled to a new trial
because of prosecutorial misconduct. Specifically, he argues
that statements related to sentencing and juror anonymity,
which the prosecutor made during closing arguments,
significantly burdened his rights under the Fifth and Sixth
Amendments so as to render his trial unfair. We need not
pass on the import of these statements because we conclude
that Waller is entitled to a new trial on other grounds.

20