Jason Woods v. GOVERNMENT OF THE VIRGIN ISLANDS On Appeal from the District Court of the Virgin…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4476
JASON WOODS,
Appellant.
v.
GOVERNMENT OF THE VIRGIN ISLANDS
On Appeal from the District Court of the
Virgin Islands, Division of St. Thomas, Appellate Division
(District Court No. 04-cr-00088)
Hon. Raymond L. Finch, Chief District Judge
Hon. Curtis V. Gomez, District Judge of the Virgin Islands
Patricia D. Steele, Superior Court Judge of the Virgin Islands
Argued on December 11, 2007
Before: SMITH, NYGAARD and ROTH, Circuit Judges
(Opinion filed April 16, 2008)
David J. Cattie, Esquire (ARGUED)
Ogletree Deakins Nash Smoak and Stewart, L.L.C.
1336 Beltjen Road, Suite 201
Tunick Building
St. Thomas, USVI 00802
Counsel for Appellant

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Vincent F. Frazer, Esquire
Attorney General
Elliott M. Davis, Esquire
Solicitor General
Maureen Phelan, Esquire
Assistant Attorney General
Tiffany V. Robinson, Esquire (ARGUED)
Assistant Attorney General
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2 Floornd
Charlotte Amalie
St. Thomas, USVI 00802
Counsel for Appellee
O P I N I O N
ROTH, Circuit Judge:
Jason Woods was convicted in the Superior Court of the Virgin Islands of two
counts of third degree assault and one count of using a dangerous weapon during a third
degree assault, in connection with an alleged attack with a baseball bat on Dwight Rouse.
Woods was sentenced to two years for each assault charge and seven-and-a-half years for
the weapon charge, to be served concurrently. Woods appealed to the Appellate Division

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of the District Court for the Virgin Islands. His conviction was affirmed. Woods then
appealed to this Court. For the reasons set forth below, we will reverse the conviction,
vacate the sentence, and remand this case to the Superior Court for further proceedings
consistent with this opinion.
I. Background and Procedural History
The trial in this case lasted approximately two days, including jury selection and
closing arguments. The primary evidence against Woods at trial consisted of the
testimony of his alleged victim, Rouse. The arresting officer and the custodian of records
at the hospital where Rouse was treated also testified. No witnesses to the alleged attack
testified, although apparently there were witnesses present. Woods testified in his own
defense, claiming that he had hit Rouse in self-defense after Rouse drew a knife.
Among other issues, Woods challenges the prosecutor’s references during trial to
Woods’ post-arrest silence. During the course of the trial, the prosecutor referred
multiple times to Woods’ post-arrest silence. These statements occurred during the
prosecutor’s examination of the arresting officer, his cross-examination of Woods, his
closing argument, and his rebuttal argument. The prosecutor contended that Woods’
failure to raise his self-defense claim earlier suggested that it was a “recent fabrication.”
Woods’ counsel failed during trial to object to any of these remarks or to request a
curative instruction. Moreover, no such instruction was provided although the judge did
instruct the jury regarding self-defense and regarding the fact that attorney argument is

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not evidence.
II. Analysis
The District Court had jurisdiction to review the final judgment and order of the
Superior Court. See The Omnibus Justice Act of 2005, Act No. 6730, § 54 (amending
Act No. 6687 (2004), which repealed 4 V.I.C. §§ 33-40, and reinstating appellate
jurisdiction in the District Court); Revised Organic Act of 1954, § 23A; 48 U.S.C. §
1613a. We have jurisdiction under 28 U.S.C. § 1291.
Because Woods did not raise the issue of the prosecutor’s comments about his
silence before the trial court, he must demonstrate plain error under Federal Rule of
Criminal Procedure 52(b). United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001).
Woods “must show that (1) an error was committed; (2) the error was plain; and (3) the
error affected [his] substantial rights.” Id. (internal quotations omitted). “[I]n most cases,
[the limitation that the plain error must have affected substantial rights] means that the
error must have been prejudicial: It must have affected the outcome of the district court
proceedings.” United States v. Olano, 507 U.S. 725, 734 (1996).
We have recognized that “[t]he plain error exception is to be used sparingly . . ..”
Government of the Virgin Islands v. Mujahid, 990 F.2d 111, 116 (1993). “The discretion
conferred by Rule 52(b) should be employed in those circumstances in which a
miscarriage of justice would otherwise result . . ..” Olano, 507 U.S. at 736 (internal

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The right recognized in Doyle applies to federal prosecutions as well, under the Fifth1
Amendment. United States v. Balter, 91 F.3d 427, 439 n.9 (3d Cir. 1996).
Although, as the District Court noted, the record does not establish whether or not2
Woods in fact received his Miranda warnings at the time of his arrest, the Government of
the Virgin Islands has not argued to this Court that he did not.
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quotations omitted). “The Court of Appeals should correct a plain forfeited error
affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” Id. (quoting United States v. Atkinson, 297 U.S. 157,
160 (1936)).
We do not apply a rigid test for determining plain error. Mujahid, 990 F.2d at 116.
Rather, we “consider on a case-by-case basis such factors as the obviousness of the error,
the significance of the interest protected by the rule that was violated, the seriousness of
the error in the particular case, and the reputation of judicial proceedings if the error
stands uncorrected – all with an eye toward preventing manifest injustice.” Id. (internal
quotations omitted).
Doyle v. Ohio, 426 U.S. 610 (1976), established the rule “that the use for
impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving
Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” Id.
at 619. “Deviation from a legal rule is ‘error.’” Olano, 507 U.S. at 732-33.1
The prosecutor’s references to Woods’ post-arrest silence violated the prohibition
established by Doyle. The prosecutor challenged Woods’ decision not to tell anyone2
(other than his attorney) about Rouse pulling a knife at any time prior to trial, including

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after he was arrested. However, Woods’s silence prior to trial was not “blatantly
inconsistent” with his testimony that he attacked Rouse with a bat only after Rouse drew a
knife. See Hassine v. Zimmerman, 160 F.3d 941, 948 (3d Cir. 1998) (“As [footnote 11 in
Doyle] makes clear, ‘to be admissible, keeping silence must be much more than
ambiguous. It must appear to be an act blatantly inconsistent with the defendant’s trial
testimony.’” (quoting United States v. Fairchild, 505 F.2d 1378, 1382 (5th Cir. 1975))).
Woods’ silence, however, could rather have been premised on the assurance of the
Miranda warnings that his silence would not be used against him. See Brecht v.
Abrahamson, 507 U.S. 619, 629 (1993).
The prosecutor’s error in referring to Woods’ post-arrest silence affected not only
Woods’ substantial rights, but also the fairness of judicial proceedings. The evidence
against Woods was the testimony of Rouse that Woods attacked him. Essentially, the jury
was required to decide whether they believed Woods or Rouse.
We agree with the District Court that the prosecutor’s conduct in this case “[was]
beneath the level of propriety expected of the government.” Woods v. Government of the
Virgin Islands, D.C. Crim. App. No. 2004-88, 2006 U.S. Dist. LEXIS 59,367 (D.V.I.
Aug. 18, 2006) at *19. The prosecutor repeatedly suggested during the course of a
roughly two-day trial that Woods’ failure to declare the substance of his self-defense
testimony meant that he had fabricated it. These repeated and unchecked comments
undermined the crux of Woods’ defense, i.e. , that he acted in self-defense. In light of the

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We find without merit Woods’ argument that the evidence was insufficient to3
support a conviction because the prosecution failed to establish that a baseball bat is a
“deadly weapon.”
Because we will reverse Woods’ conviction based on the Doyle error, we will not
rule on the other issues he raises on appeal. We note, however, that the prosecutor’s
comments, which Woods argues constituted impermissible vouching, appear close to the
line of impropriety.
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fact that this case turned on the respective credibility of Rouse and Woods, we find that
the prosecutor’s discrediting of Woods via a Doyle error probably affected the outcome
and resulted in a miscarriage of justice. Accordingly, we will reverse Woods’s
conviction. See Mujahid, 990 F.3d at 116.3
III. Conclusion
For the reasons set forth above, we will reverse the judgment of conviction of
the District Court and remand this case to the Superior Court for further proceedings
consistent with this opinion.

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