1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-9-1998

Hassine v. Zimmerman

Precedential or Non-Precedential:

Docket 97-1969

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Recommended Citation

"Hassine v. Zimmerman" (1998). 1998 Decisions. Paper 260.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/260
Filed November 9, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1969 

VICTOR HASSINE, 

 Appellant 

v. 

CHARLES ZIMMERMAN, Superintendent, and THE 

ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civil No. 86-6315) 

Argued: August 4, 1998 

Before: NYGAARD, ALITO, and RENDELL, Circuit Judges

(Opinion Filed: November 9, 1998) 

 Donald J. Goldberg (Argued) 

 Leslie H. Smith 

 Ballard Spahr Andrews & 

 Ingersoll, LLP 

 1735 Market Street, 51st Floor 

 Philadelphia, PA 19103-7599 

 Attorneys for Appellant 
 C. Theodore Fritsch, Jr. (Argued) 

 Stephen B. Harris 

 Alan M. Rubenstein 

 District Attorney's Office 

 Bucks County Courthouse, 4th Floor 

 Doylestown, PA 18901 

 Attorneys for Appellees 

OPINION OF THE COURT 

RENDELL, Circuit Judge: 

On January 4, 1983, a Pennsylvania state court 

sentenced Victor Hassine to life in prison, following his 

1981 conviction on charges of first degree murder, 

attempted murder, criminal conspiracy, and criminal

solicitation. Now, more than fifteen years later, we are faced 

with the question of whether to vacate Hassine's conviction 

by granting his petition for habeas relief brought pursuant 

to 28 U.S.C. S 2254. Hassine contends that relief is 

warranted because the state prosecutor sought to use his 

post-arrest silence for impeachment purposes at trial in 

violation of the due process principles established in Doyle 

v. Ohio, 426 U.S. 610 (1976). The district court found that 

a Doyle violation had occurred, but it concluded that any 

constitutional error was harmless under the standard 

announced in Brecht v. Abrahamson, 507 U.S. 619 (1993). 

We agree that the prosecutor violated Doyle by seeking to 

elicit testimony concerning Hassine's post-arrest silence. 

We also agree that Brecht is the proper standard to apply 

on collateral review. Because we agree further that the 

Doyle violation was harmless under Brecht, we will affirm. 

I. FACTUAL AND PROCEDURAL HISTORY 

A. The Murder Conspiracy 

This case arises out a conspiracy involving Hassine and 

his co-conspirators George Gregory Orlowski and William 

Eric Decker, which culminated in the August 22, 1980, 

 2 
murder of James Puerale and the shootings of Albert "Skip" 

Kellet and Lois Kellet. 

The evidence at trial showed that Hassine first met

Orlowski in 1979, and that shortly thereafter they decided 

to open a store in Morrisville, Pennsylvania, called Greg's 

Quality Meat Market ("the Market"). The store was financed 

by Hassine's family, overseen and supervised by Hassine 

himself, and operated on a daily basis by Orlowski.

However, the Market soon experienced financial problems, 

and, with Hassine's knowledge, Orlowski began selling 

marijuana and methamphetamine from a back room in the 

store. 

In June 1980, Albert Kellet, a close friend of Orlowski, 

purchased $150 of methamphetamine at the Market. Upon 

returning home, Kellet discovered that the drugs were of 

inferior quality and he became enraged. He called Orlowski 

and invited him to his apartment under the false pretense 

of wishing to buy more methamphetamine. When Orlowski 

arrived, Kellet threatened him with a club, stole all of his 

money and drugs, and threw him out of the apartment. 

Several days later, Orlowski, Hassine, and Decker, among 

others, met at the Market to discuss Kellet's actions. The 

State's witnesses testified that at this meeting, Hassine 

announced that he wanted Kellet "wasted" and that if Lois 

Kellet, Albert's wife, was present, she "was to go also, 

because any witnesses had to go." As a result, Hassine, 

Decker, and Orlowski made several attempts over the next 

month to obtain a gun with which to kill Kellet, and they 

investigated the possibility of paying two other individuals 

to have Kellet murdered. A number of confrontations

between Hassine and Kellet also erupted during this time, 

and, on at least one occasion, Hassine instructed Decker to 

shoot Kellet and to kill him. Because it was daylight and a 

witness was present, Decker declined. Nevertheless, on 

August 22, 1980, Decker had his own encounter with 

Kellet, and he returned to the Market to tell Hassine that 

"[t]onight's the night -- the cat's got to go. We'll use your 

gun." 

According to the State's witnesses, Hassine picked 

Decker up later that evening and drove him to Hassine's 

 3 
parents' house in Trenton, New Jersey. While Decker waited 

in the car, Hassine entered the house and obtained his 

father's .380 caliber Llama handgun. Hassine then drove 

Decker to Kellet's apartment building and gave him the gun 

and a New York Yankees batting helmet to cover his hair. 

As Decker approached the building, he saw Kellet in a firstfloor apartment watching television with his wife Lois, and 

with James Puerale and George Sofield. Decker entered the 

apartment, surveyed the room, and opened fire, killing 

Puerale instantly and injuring Skip and Lois Kellet with 

shots to the head. 

The police arrested Decker the next day, and arrested 

Hassine three months later, charging Hassine withfirst 

degree murder, attempted murder, conspiracy, and 

solicitation. 

B. The Murder Trial 

The State presented thirty-four witnesses at Hassine's 

trial, including Decker, who had negotiated a plea bargain 

with the District Attorney to avoid the death penalty. 

Decker and the other witnesses testified as to the details of 

the murder conspiracy and described Hassine's extensive 

involvement in the plot to murder Kellet. 

Hassine then took the stand in his own defense and, for 

the first time since his arrest, offered an innocent 

explanation for his role in the conspiracy. He testified that 

he had obtained his father's gun and stored it in the 

Market after Orlowski had asked him for protection from 

Kellet. He then claimed that Decker entered the Market on 

the day of the murder, and, without Hassine's knowledge, 

took the gun and left the store "ranting and raving, saying 

he was going to get Skip Kellet." Hassine thus maintained 

that he never told Decker to kill Kellet, that he never gave 

Decker a gun with which to carry out the crime, and that 

he was never part of the murder conspiracy. 

Attempting to discredit these claims, the prosecutor 

asked Hassine a series of questions on cross-examination 

regarding Hassine's post-arrest silence. In particular, he 

inquired three times as to why Hassine had not offered the 

same exculpatory story to the authorities following his 

 4 
arrest. Hassine's attorney objected each time, believing that 

the questions violated Hassine's rights under Doyle v. Ohio, 

which provides that the government cannot use a 

defendant's post-arrest, post-Miranda silence for 

impeachment purposes at trial. 426 U.S. at 610. The trial 

judge agreed, sustaining the objections and preventing 

Hassine from answering the prosecutor's questions. The 

prosecutor also made two general references to Hassine's 

silence in his closing argument. Nevertheless, the court did 

not provide curative instructions during Hassine's 

testimony or in the jury charge. 

The case was sent to the jury at the close of all evidence, 

and on June 11, 1981, the jury found Hassine guilty and 

recommended that he be sentenced to life in prison on the 

charge of first degree murder. After denying Hassine's 

motions for a new trial and arrest of judgment, the court 

adopted the jury's recommendation and sentenced Hassine 

to life imprisonment, in addition to several consecutive 

prison terms extending from two to twenty years. 

C. Review of the State Court Conviction 

Hassine appealed his conviction to the Superior Court of 

Pennsylvania, assigning fifteen reversible errors to the trial 

court. See Commonwealth v. Hassine, 490 A.2d 438, 443- 

44 (Pa. Super. Ct. 1985) ("Hassine I"). Among other things, 

he argued that the state prosecutor had violated the due 

process principles established in Doyle by interrogating him 

on the witness stand about his post-arrest silence. On 

February 8, 1985, the Superior Court denied Hassine's 

appeal in its entirety and affirmed his sentence,finding 

that his list of alleged errors was "short on merit," id. at 

444, and rejecting his claim of prosecutorial misconduct 

based on Doyle. Relying on state precedent, the court noted 

that testimony regarding post-arrest silence can be elicited 

"to refute contrary statements volunteered by the defendant 

to demonstrate his cooperation at the time of questioning," 

id. at 451 (quoting Commonwealth v. Bey, 439 A.2d 1175, 

1177 (1982)), and concluded that "[w]e believe this occurred 

here. The district attorney elicited testimony designed to 

rebut [Hassine's] claim that he cooperated with the police, 

 5 
not to suggest [Hassine's] guilt to the jury. Hence we find 

no error." Hassine I, 490 A.2d at 451. 

On May 13, 1985, Hassine applied for a Petition for

Allowance of Appeal in the Supreme Court of Pennsylvania, 

claiming again, inter alia, that the prosecution asked 

improper questions at trial about his post-arrest silence. 

On April 15, 1986, however, the state Supreme Court

denied the Petition and Hassine's conviction became final. 

Hassine chose not to seek a writ of certiorari from the 

Supreme Court of the United States, but instead filed a 

petition for a writ of habeas corpus with the district court 

on October 28, 1986. Among other things, Hassine argued 

once again that the prosecutor had exploited his post-arrest 

silence as an impeachment tactic in violation of due 

process and Doyle. The district court referred the petition to 

a Magistrate Judge for a Report and Recommendation in 

accordance with 28 U.S.C. S 636(b)(1)(B), and on June 15, 

1988, the Magistrate Judge recommended that relief be 

denied. After reviewing the record in detail, the Magistrate 

Judge found strong evidence "that the jury may have

impermissibly been able to draw an inference between 

petitioner's silence and his guilt, thus clearly infringing 

upon petitioner's due process rights as established in 

Doyle." Nevertheless, he concluded that any constitutional 

error was harmless, because "[t]he evidence against

Hassine was overwhelming." 

Hassine filed several objections to the Report and 

Recommendation, and the district court granted de novo 

review of the Magistrate Judge's findings consistent with 28 

U.S.C. S 636(b)(1)(C). One year later, on November 15, 

1989, the district court issued a Memorandum and Order 

agreeing with the Magistrate Judge's ruling that the jury 

had been permitted "to draw an impermissible inference of 

guilt from Hassine's silence" in violation of Doyle and its 

progeny. Hassine v. Zimmerman, No. Civ. A. 86-6315, 1989 

WL 140491, at *5 (E.D. Pa. Nov. 15, 1989) ("Hassine II"). 

However, the district court withheld a final decision on 

Hassine's petition, because it believed that oral argument 

was needed on the question of whether the trial error had 

been harmless. 

 6 
Oral argument was held on December 1, 1989, but the

court did not immediately issue a ruling, and no further 

events transpired in the case for the next three and a half 

years. On April 21, 1993, the Supreme Court announced its 

decision in Brecht v. Abrahamson, 507 U.S. 619 (1993), 

altering the standard for harmless error in habeas cases 

involving constitutional trial flaws. Prior to Brecht, the 

Court had held in Chapman v. California that habeas relief 

should be denied in the event of constitutional trial error 

only if the prosecution could prove that the error was 

"harmless beyond a reasonable doubt." 386 U.S. 18, 24 

(1967). In Brecht, however, the Supreme Court announced 

a new test for harmless error in habeas cases, namely, 

whether the error "had substantial and injurious effect or 

influence in determining the jury's verdict." 507 U.S. at 623 

(quoting Kotteakos v. United States, 328 U.S. 750, 776 

(1946)). If not, habeas relief should be denied. 

Realizing the potential impact of the new standard on 

Hassine's petition, the district court scheduled a July 29, 

1993, conference call to discuss several matters, including 

"the significance, if any" of the Supreme Court's decision in 

Brecht. Following that call, the parties submitted letter 

briefs to the district court regarding whether Hassine's 

claims should be evaluated under Brecht or Chapman and 

whether harmless error could be found under either 

standard. However, two more years passed, and on May 4, 

1995, the district court conducted yet another oral

argument concerning whether Brecht should be applied to 

Hassine's petition. Still, no decision issued, and the parties 

filed at least ten additional letter briefs in the ensuing two 

years. 

Finally, on October 30, 1997 -- more than eleven years 

from the date on which Hassine first filed his habeas 

petition -- the district court reached a decision on the 

merits of the harmless error claim. The court examined the 

caselaw and the rationales supporting the rule in Brecht 

and concluded that "[t]his court must apply the Brecht 

standard" to Hassine's petition for relief. Hassine v. 

Zimmerman, No. Civ. A. 86-6315, 1997 WL 677152, at *5 

(E.D. Pa. Oct. 30, 1997) ("Hassine III"). After conducting an 

extensive review of the record and the evidence supporting 

 7 
the jury's verdict, the court then held that the Doyle error 

at Hassine's trial was harmless, because "the record, 

considered as a whole, demonstrates that the direct and 

circumstantial evidence of [Hassine's] guilt was 

overwhelming." Id. at *7. The court determined that "the 

prosecutor's improper reference to Hassine's post-arrest 

silence, although a constitutional violation under Doyle, did 

not have a substantial and injurious effect or influence on 

the jury's guilty verdict" within the meaning of Brecht. Id. at 

*10. 

The district court issued a certificate of probable cause 

allowing Hassine to file a timely appeal, and we now have 

jurisdiction to hear the appeal pursuant to 28 U.S.C. 

SS 1291 and 2253.1 Because the district court relied entirely 

on the state court record and did not hold an evidentiary 

hearing, our review is plenary. See Johnson v. Rosemeyer, 

117 F.3d 104, 109 (3d Cir. 1997). Acting in the same 

capacity as the district court, we will presume that the 

factual findings of the state courts are correct if fairly 

supported by the record, but we will exercise plenary review 

over state court conclusions on mixed questions of law and 

fact and pure issues of law. See Ahmad v. Redman , 782 

F.2d 409, 412 (3d Cir. 1986). 

II. THE DOYLE VIOLATION 

The Supreme Court established in Doyle v. Ohio that it is 

improper for a prosecutor to cause the jury to draw an 

impermissible inference of guilt from a defendant's postarrest silence. 426 U.S. at 610. Doyle involved two

defendants who, upon taking the witness stand in their 

own defense, claimed that a narcotics informant had

framed them for the crime. The prosecutor asked each 

defendant on cross-examination whether he had told the 

"framing" story to the police after his arrest. Defense 

counsel objected strenuously, arguing that the prosecution 

could not impeach the defendants on this basis because 

_________________________________________________________________ 

1. This case is not subject to the terms of the Antiterrorism and 

Effective 

Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 

1214 (1996), because Hassine filed his habeas petition well before the 

April 24, 1996, date on which the AEDPA took effect. 

 8 
the defendants were merely exercising their right to remain 

silent after arrest. However, the objections were overruled 

and the defendants were compelled to admit that they had 

not provided an exculpatory story to the authorities 

following their arrests and the reading of their Miranda 

rights. 

On appeal, the defendants argued that the prosecutor's 

line of questioning violated the due process guarantees 

inherent in the right to remain silent. The Supreme Court 

agreed, reversing their convictions in light of Miranda's 

implicit assurance that silence will have no adverse 

consequences. The Court stated that "it would be 

fundamentally unfair and a deprivation of due process to 

allow the arrested person's silence to be used to impeach 

an explanation subsequently offered at trial." Id. at 618. 

Therefore, the Court held, "the use for impeachment

purposes of petitioners' silence, at the time of arrest and 

after receiving Miranda warnings, violate[s] the Due Process 

Clause of the Fourteenth Amendment." Id. at 619. 

In this case, we believe that the state prosecutor violated 

the due process principles established in Doyle by seeking 

to elicit testimony about Hassine's post-arrest, postMiranda silence. The record shows that the prosecutor's 

cross-examination of Hassine proceeded as follows: 

Prosecutor: How long have you been sitting in jail, sir? 

Hassine: Close to seven months. 

Prosecutor: And you have been sitting in Bucks Country 

 Prison? 

Hassine: No, sir. 

Prosecutor: You were in Bucks County Prison for a time? 

Hassine: About a month and a half. 

Prosecutor: You were sitting in Holmesburg Prison?

Hassine: For about five months. 

Prosecutor: And another prison? 

Hassine: Delaware County. 

Prosecutor: And conditions are not very good? 

Hassine: No, sir. 

Prosecutor: You sat for seven months in prison with the 

 knowledge of what was really involved in 

 regard to this gun, and you just kept it to 

 9 
 yourself because your attorney said to keep it 

 to yourself? 

 Hassine's Attorney: Objection. 

 The Court: Sustained. 

Prosecutor: But you kept it to yourself until you came in 

 to a court of law today and said it for the first 

 time, in any event, outside of perhaps your 

 family or your lawyer? 

 Hassine's Attorney: Objection. 

Prosecutor: For the first time? 

 Hassine's Attorney: That is objected to. 

 The Court: Sustained. 

On three occasions, and over three objections, the 

prosecutor asked Hassine why he had remained silent

about the crime after his arrest and after Miranda warnings 

had been given. It is clear from these questions that the 

prosecutor was attempting to elicit the precise inferences 

that the State is prohibited from exploiting under Doyle. 

Further, the trial court did not provide, and defense 

counsel did not request, any curative instructions for the 

jury. In this regard, the instant case is distinguishable from 

Greer v. Miller, 483 U.S. 756 (1987), where the Supreme 

Court found no Doyle violation. In Greer, the sequence of 

events "-- a single question, an immediate objection, and 

two curative instructions -- clearly indicate[d] that the 

prosecutor's improper question did not violate [the

petitioner's] due process rights." Id. at 766. Here, the 

prosecutor asked questions concerning the amount of time 

Hassine had spent in prison, questioned Hassine about the 

poor conditions he had experienced in confinement, and 

then, despite objections by the defense, asked three 

questions that are clearly prohibited by Doyle, and then 

made statements in his closing that could be understood to 

refer to that same silence. Moreover, the trial court gave no 

curative instructions at all. We thus find that the

government violated Hassine's right to due process under 

Doyle. 

In so ruling we reject the State's argument, and the view 

of the Pennsylvania Superior Court in Hassine I, 490 A.2d 

 10 
at 451, that the prosecutor's questions were nonetheless 

permissible because Hassine had "opened the door" in his 

direct testimony to inquiries about his post-arrest silence. 

Hassine had told the jury on direct examination that his 

attorney had offered to make him "available to the police," 

by, for example, offering to present his father to the police 

"in connection with identifying the gun." The State

contends that by asking Hassine about his post-arrest 

silence, the prosecutor was merely challenging Hassine's 

testimony as to his behavior following arrest by impeaching 

Hassine's claim on direct examination that he was 

"available" and willing to cooperate with the authorities. 

The State's argument is based on an exception contained 

in footnote eleven in Doyle, which provides that "post-arrest 

silence could be used by the prosecution to contradict a 

defendant who testifies to an exculpatory version of events 

and claims to have told the police the same version upon 

arrest." 426 U.S. at 619 n.11. As the Supreme Court

explained, "[i]n that situation the fact of earlier silence 

would not be used to impeach the exculpatory story, but 

rather to challenge the defendant's testimony as to his 

behavior following arrest." Id. 

We agree that the State's argument has some allure 

under Doyle as a basis for the prosecutor to use Hassine's 

post-arrest silence for impeachment. However, we find, as 

the district court did, that Hassine's direct testimony was 

far too innocuous and ambiguous to constitute an 

exculpatory version that would justify the pointed crossexamination in this case. The Doyle footnote applies when 

a witness testifies on the stand to a version of events and 

indicates that he previously told that version to law 

enforcement. The government can then pursue its position 

that the story was not previously told, and may bring out 

on cross-examination the fact that the defendant was silent 

following arrest. As the one case cited in the Doyle footnote 

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." 

United States v. Fairchild, 505 F.2d 1378, 1382 (5th Cir. 

1975). In this case, however, there is no contention that 

Hassine described a version of events on the stand and 

 11 
indicated that he had previously told that same story to the 

police. Rather, the only testimony which harkens back to 

Hassine's previous behavior deals with his declaration that 

he was "available" for further questioning. Hassine did not 

claim to have told the police an exculpatory story after 

arrest, did not imply that he had participated actively in the 

investigation, and never suggested that he had surrendered 

his right to silence by speaking directly with the 

authorities. The only relevance of the prosecutor's

questioning to Hassine's previous silence, therefore, 

implicates his right to remain silent more than it 

constitutes questioning probative of his truth or credibility.2 

The Doyle footnote exception only permits the 

prosecution to use post-arrest silence to impeach the 

credibility of the defendant's version of what he did 

following arrest; the government cannot use the silence to 

impeach the exculpatory story itself or to draw inferences 

suggesting the defendant's guilt. See Doyle, 426 U.S. at 619 

n.11; United States v. Gant, 17 F.3d 935, 941 (7th Cir. 

1994) ("[T]he government may use defendant's silence for 

the limited purpose of impeaching his testimony; it may not 

argue that the defendant's silence is inconsistent with his 

claim of innocence."); Alo v. Olim, 639 F.2d 466, 468 (9th 

Cir. 1980) (questions implying that the defendant's silence 

is substantive evidence of guilt are not permitted under the 

Doyle exception). In the present case, rather than simply 

asking Hassine if he had told his story to the police after 

arrest, the prosecutor asked incredulously, "[y]ou sat for 

seven months in prison with the knowledge of what was 

really involved in regard to the his gun, and you just kept 

it to yourself because your attorney said to keep it to 

yourself?" We believe that questions like this clearly invite 

_________________________________________________________________ 

2. Hassine's appeal thus differs greatly from Fairchild, where the court 

determined that post-arrest silence was admissible because the defense 

attorney had specifically asked the defendant if he had "cooperated fully 

with the FBI and U.S. Attorney's office in responding with anything that 

you all wanted." 505 F.2d at 1383; see also Leecan v. Lopes, 893 F.2d 

1434, 1442 (2d Cir. 1990) (emphasis added) (finding that an inquiry into 

post-arrest silence was warranted where the defendant's testimony "left 

the clear implication that he had proffered his alibi to the police upon 

surrender"). 

 12 
the jury -- in violation of Doyle -- to reject Hassine's story 

and to infer that Hassine's post-arrest silence was a sign of 

his guilt. 

Consequently, we conclude that the footnote eleven 

exception in Doyle is of no aid to the State. The prosecutor 

violated Hassine's right to due process at trial by seeking to 

draw impermissible inferences about Hassine's postMiranda silence following arrest. 

III. HARMLESS ERROR 

Having found a violation of Hassine's federal 

constitutional rights, we turn next to the issue of whether 

the error at Hassine's trial can be characterized as 

harmless. The Supreme Court has identified two types of 

constitutional errors: structural and trial. See Arizona v. 

Fulminante, 499 U.S. 279, 306-10 (1991). "A structural 

error is a defect in the trial mechanism itself, affecting the 

entire trial process, and is per se prejudicial." Yohn v. Love, 

76 F.3d 508, 522 (3d Cir. 1996) (citations omitted). By 

contrast, "trial error occurs during the presentation of the 

case to the jury, and may be quantitatively assessed in the 

context of all other evidence." Id. The Supreme Court has 

written that "Doyle error fits squarely into the category of 

constitutional violations which we have characterized as 

trial error." Brecht, 507 U.S. at 629 (quotation omitted). 

Therefore, we must assess whether the Doyle violation at 

Hassine's trial constitutes harmless error in the context of 

all the evidence presented by the State. 

The nature of the harmless error inquiry, however, has 

been modified during the pendency of Hassine's habeas 

corpus proceedings, as discussed above. For many years, 

the standard in both direct and collateral appeals for 

determining whether a constitutional trial error was 

harmless was the test established in Chapman v. California, 

which held that a conviction would be vacated unless the 

government could prove that the error was "harmless

beyond a reasonable doubt." 386 U.S. at 24. In 1993, 

however, the Supreme Court held in Brecht v. Abrahamson, 

507 U.S. at 619, that harmless error in habeas cases 

should be judged instead by the standard for 

 13 
nonconstitutional errors set forth in Kotteakos v. United 

States. Thus, under Brecht, habeas relief can now be 

granted on collateral review only if the constitutional trial 

error "had substantial and injurious effect or influence in 

determining the jury's verdict." 507 U.S. at 623 (quoting 

Kotteakos, 328 U.S. at 776).3 

Ordinarily, this would present no problem on appeal, 

because we would apply the Brecht standard to a petitioner 

seeking habeas relief. In this case, though, Hassine argues 

that he is entitled to the benefit of the older, more stringent 

Chapman standard because no state court has ever 

evaluated his claim under Chapman on direct review.

Before proceeding to an application of the harmless error 

test, we must therefore resolve the following threshold 

issue: should a federal court apply the Brecht standard for 

harmless error in a habeas case where the state courts 

have never conducted a review of the error on direct appeal 

under Chapman? The district court found that Brecht

should apply regardless of the actions of the state courts, 

and we agree. 

A. Whether Brecht or Chapman Should Apply 

The federal courts remain divided as to whether Brecht or 

Chapman applies in a situation in which a habeas 

petitioner has never had his claim evaluated under 

Chapman on direct appeal. The Eighth Circuit, and at least 

two district courts, have concluded that the "rule 

announced in Brecht does not apply and that the Chapman 

harmless error standard is the appropriate test in this 

case." Orndorff v. Lockhart, 998 F.2d 1426, 1430 (8th Cir. 

_________________________________________________________________ 

3. Brecht adopts a more deferential standard on collateral review for 

cases involving constitutional trial errors. Nevertheless, the degree of 

the 

difference in practice remains to be seen as the new test is applied. As 

Justice Stevens, whose concurrence provided the decisive fifth vote in 

Brecht, noted, "[g]iven the critical importance of the faculty of judgment 

in administering either standard, however, th[e] difference [in emphasis] 

is less significant than it might seem . . . . In the end, the way we 

phrase 

the governing standard is far less important than the quality of the 

judgment with which it is applied." 507 U.S. at 643 (Stevens, J., 

concurring). 

 14 
1993); see also Starr v. Lockhart, 23 F.3d 1280, 1292 (8th 

Cir. 1994); Lyons v. Johnson, 912 F. Supp. 679, 687-89 

(S.D.N.Y. 1996), aff'd, 99 F.3d 499 (2d Cir. 1996); Rickman 

v. Dutton, 864 F. Supp. 686, 712 (M.D. Tenn. 1994), aff'd 

sub nom. Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997). 

By contrast, the Fourth, Fifth, Seventh, Tenth, and

Eleventh circuits have all held that "Brecht, rather than 

Chapman, enunciates the appropriate standard for 

determining whether a constitutional error was harmless in 

a federal habeas challenge to a state conviction or

sentence," regardless of the standard employed by the state 

courts. Hogue v. Johnson, 131 F.3d 466, 499 (5th Cir. 

1997), cert. denied, ___ U.S. ___, 118 S. Ct. 1297, (1998);4 

see also Sherman v. Smith, 89 F.3d 1134, 1140-41 (4th Cir. 

1996), cert. denied, ___ U.S. #6D6D 6D#, 117 S. Ct. 765 (1997); 

Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995); 

Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995), cert. 

denied, 516 U.S. 1041 (1996); Horsley v. Alabama, 45 F.3d 

1486, 1492 n.11 (11th Cir. 1995).5 Hassine contends that 

we should not implement Brecht as we normally would, but 

that we should cling to the old Chapman standard, 

notwithstanding the new formulation handed down by the 

Supreme Court. However, we are unwilling to find an

exception to Brecht's "standard formula," Tyson, 50 F.3d at 

446, because we disagree with the four arguments that 

Hassine offers in contending that Chapman should apply. 

First, the plain language of Brecht makes no distinction 

_________________________________________________________________ 

4. A panel of the Fifth Circuit recently noted its disagreement with 

Hogue, but concluded that "we may not ignore the [Hogue] decision, for 

in this circuit one panel may not overrule the decision of a prior panel." 

Barber v. Johnson, 145 F.3d 234, 237 (5th Cir. 1998), petition for cert. 

filed, (U.S. Sep. 10, 1998) (No. 98-6001). Hogue thus remains good law 

in the Fifth Circuit. 

5. Two courts passed on the issue after finding that the trial error would 

not have been harmless under either standard. See Lyons v. Johnson, 99 

F.3d 499, 503 (2d Cir. 1996) ("[D]ue to the magnitude of the trial court's 

error . . . we need not decide whether . . . Chapman or Brecht is the 

appropriate standard to apply in this case."); Hanna v. Riveland, 87 F.3d 

1034, 1038 n.2 (9th Cir. 1996) ("[W]e do not need to decide this issue 

because, even under Brecht's less stringent standard of review, the error 

cannot be deemed harmless."). 

 15 
that requires us to employ Chapman on collateral review. 

The issue in Brecht was "whether the Chapman harmlesserror standard applies in determining whether the 

prosecution's use for impeachment purposes of petitioner's 

post-Miranda silence, in violation of due process under 

Doyle v. Ohio, entitles petitioner to habeas corpus relief." 

507 U.S. at 622-23 (footnote and citation omitted). The 

Court held that "the Kotteakos harmless-error standard 

applies in determining whether habeas relief must be 

granted because of constitutional error of the trial type." Id. 

at 638; see also id. at 623 ("[T]he standard for determining 

whether habeas relief must be granted is whether the Doyle 

error `had substantial and injurious effect or influence in 

determining the jury's verdict.' ") (quoting Kotteakos, 328 

U.S. at 776). The Court never restricted the issues or the 

holding in Brecht to situations where a petitioner has 

already had his or her claim evaluated by the state courts 

under Chapman. Therefore, we are not persuaded that we 

should read an exception into Brecht's harmless error rule 

when no such exception is even implicit in the Court's 

opinion. 

Second, in contrast to the views of some courts, we do 

not believe that we should regard the facts in Brecht as 

limiting the Court's holding to cases in which Chapman has 

previously been applied. Because the Court decided Brecht 

after the Wisconsin Supreme Court had already ruled on 

the harmless error issue under Chapman, several courts 

have viewed prior Chapman review as integral to Brecht's 

result.6 We disagree. 

_________________________________________________________________ 

6. For example, the Eighth Circuit has written that Brecht was "based 

largely on the notion that because the state courts can properly apply 

the Chapman harmless error standard on direct review, the federal 

habeas courts need only review those decisions under the Kotteakos 

harmless error standard." Orndorff, 998 F.2d at 1430. Likewise, the 

district court in Lyons stated that Brecht "was premised largely on 

respect for the actual, conscientious review of harmlessness performed 

by four prior courts -- both federal and state-- that applied Chapman." 

912 F. Supp. at 689. These courts thus believe that Brecht intended to 

alter the harmless error standard only for those habeas cases which, like 

Brecht, involved a previous application of Chapman on direct appeal. 

 16 
While the Court noted that "it scarcely seems logical to 

require federal habeas courts to engage in the identical 

approach to harmless-error review that Chapman requires 

state courts to engage in on direct review," 507 U.S. at 636, 

its holding was based primarily on a finding -- apart from 

the particular facts or history of the case -- that "the costs 

of applying the Chapman standard on federal habeas 

outweigh the additional deterrent effect, if any, that would 

be derived from its application on collateral review." Id. 

In Brecht, the Court identified four considerations in 

justifying the application of a more relaxed harmless error 

standard for habeas petitions, including the States' 

interests in the finality of convictions, comity, federalism, 

and the recognition that "liberal allowance of the writ 

degrades the prominence of the trial itself." Id. at 635 

(quoting Engle v. Isaac, 456 U.S. 107, 127 (1982)). The 

Court then reasoned comprehensively that: 

 [o]verturning final and presumptively correct 

 convictions on collateral review because the State 

 cannot prove that an error is harmless under Chapman 

 undermines the States' interest in finality and infringes 

 upon their sovereignty over criminal matters. Moreover, 

 granting habeas relief merely because there is a 

 reasonable possibility that trial error contributed to the 

 verdict, is at odds with the historic meaning of habeas 

 corpus -- to afford relief to those whom society has 

 grievously wronged. Retrying defendants whose 

 convictions are set aside also imposes significant social 

 costs, including the expenditure of additional time and 

 resources for all the parties involved, the erosion of 

 memory and dispersion of witnesses that accompany 

 the passage of time and make obtaining convictions on 

 retrial more difficult, and the frustration of society's 

 interest in the prompt administration of justice. 

507 U.S. at 637 (citations and quotations omitted). This 

analysis led the Court to conclude that "[t]he imbalance of 

the costs and benefits of applying the Chapman harmlesserror standard on collateral review counsels in favor of 

applying a less onerous standard on habeas review of 

constitutional error." Id. at 637; see also id. at 637-38 ("The 

Kotteakos standard is . . . better tailored to the nature and 

 17 
purpose of collateral review and more likely to promote the 

considerations underlying our recent habeas cases."). Thus, 

Brecht was clearly not premised on the notion that the state 

courts had already conducted a Chapman review of 

harmless error on direct appeal. The fact that the state 

courts may or may not have performed such a review was 

of minor importance to the Court's view that the Kotteakos 

standard should be applied consistently in collateral 

proceedings. 

Third, contrary to Hassine's argument, we believe that 

the policy interests identified in Brecht are nonetheless 

implicated in cases where the state courts have not

evaluated a petitioner's claim under Chapman. Hassine 

urges that we follow Lyons, in which a district court stated 

that Brecht should be used only when federal courts would 

be repeating Chapman analyses performed by the state 

courts, because it is only in these situations that the 

federal courts demonstrate a "lack of respect for state 

courts' ability as federal constitutional interpreters, and 

hence . . . violate obligations of comity and principles of 

federalism." 912 F. Supp. at 689; see also Barber, 145 F.3d 

at 238 (Dennis, J., concurring) (stating that the federal 

courts cannot defer "to the systemic values offinality, 

federalism, and comity . . . unless there has in fact been a 

good-faith State effort to protect constitutional rights by 

applying the Chapman standard"). 

Once again, however, we disagree. Finality, comity, and 

federalism do not turn on whether the state courts have 

performed a Chapman analysis, but depend, rather, on the 

fact that they have rejected a defendant's direct appeal. 

Indeed, a federal habeas court which overturns a state 

conviction on collateral review still upsets a State's interest 

in finality, and still raises federalism, comity, and trial 

process concerns, regardless of whether the state courts 

have previously identified the constitutional error or have 

performed a Chapman analysis on direct appeal. 

In light of the Court's reasoning and holding in Brecht, it 

is anomalous to say that a Chapman standard should apply 

in any habeas case based on concerns such as federalism, 

comity, or finality. Brecht stands for the proposition that 

these concerns are to be advanced by employment of the 

 18 
Brecht standard itself. Thus, not to apply Brecht, and to 

apply instead a less deferential standard, is to nullify not 

merely the policies that the Court has advanced, but the 

very import of the Brecht decision. In fact, the Supreme 

Court has repeatedly emphasized the importance of 

deference to State "sovereignty over criminal matters," 

Brecht, 507 U.S. at 637, and to the finality of criminal 

judgments, outside the context of Chapman. In Teague v. 

Lane, for example, the Court restricted the ability of habeas 

petitioners to establish new constitutional rules on 

collateral review, in part because the "[a]pplication of 

constitutional rules not in existence at the time a

conviction became final seriously undermines the principle 

of finality which is essential to the operation of our criminal 

justice system." 489 U.S. 288, 309 (1989). Likewise, in 

Wright v. West, the Court stressed the "significant costs" of 

habeas review. 505 U.S. 277, 293 (1992) (quoting Engle, 

456 U.S. at 126). "Among other things," the Court wrote, "it 

disturbs the State's significant interest in repose for 

concluded litigation, denies society the right to punish 

some admitted offenders, and intrudes on state sovereignty 

to a degree matched by few exercises of federal judicial 

authority." Wright, 505 U.S. at 293 (quotations omitted). 

Therefore, while the absence of a state court Chapman 

review may make the considerations identified in Brecht 

less compelling, it certainly does not eliminate them. As our 

sister circuits have concluded, Brecht is still the general 

rule to apply in habeas cases, even in situations where the 

state courts never employ Chapman, because "principles of 

federalism, comity, and finality apply regardless of the 

harmless error standard used by the state court." Sherman, 

89 F.3d at 1141; see also Tyson, 50 F.3d at 446 ("The 

reasons the Court gave in Brecht for adopting a less 

stringent rule are independent of the rule applied in the 

state appellate process.").7 

_________________________________________________________________ 

7. We do not mean to imply that habeas relief should be limited in the 

name of federalism and comity alone. We note merely that Supreme 

Court jurisprudence requires us to consider the systemic costs of 

applying certain standards on collateral review, and that, in this case, 

those costs are substantial even if the state courts never perform a 

Chapman analysis on direct appeal. 

 19 
Finally, we note that we are wary of the practical impact 

of applying Chapman to every case where a prior Chapman 

review has not occurred. As the Seventh Circuit recognized 

in Tyson, "ordinarily . . . the state court will not have found 

any error and therefore will have had no occasion to apply 

any standard of harmless error. Brecht itself was a fluke in 

this regard; the state courts had considered the issue of 

harmless error and applied the Chapman standard." 50 

F.3d at 446.8 Consequently, any rule requiring Chapman to 

be used when the state courts fail to address harmless 

error would render Brecht inapplicable to the majority of 

habeas petitions and would "rob the decision of any general 

significance." Id. Given the substantial interests identified 

in Brecht, and given the reasoning of the opinion, we find 

it highly unlikely that the Supreme Court could have 

sanctioned such a result. 

Cases like Brecht and Teague express the Court's belief 

that collateral review entails heightened deference and 

respect to the state courts, and we must follow governing 

precedent when it applies, as it does here. Accordingly, we 

hold that a federal habeas court performing a harmless 

error inquiry on collateral review must employ the standard 

for harmless error articulated in Brecht, even if the state 

courts have never reviewed the error on direct appeal under 

Chapman. 

B. Whether Brecht Should be Applied to Hassine 

Even if Brecht applies generally to collateral proceedings, 

Hassine contends that we should still review his claims 

under Chapman due to the unique and unusual facts of his 

case. In particular, he argues that Chapman review is 

appropriate here because (1) he forfeited the right to pursue 

an appeal in the Supreme Court when Chapman was still 

the law for harmless error on collateral review, and because 

_________________________________________________________________ 

8. The state courts may not use Chapman to evaluate harmless error on 

direct appeal if, as here, they conclude that there was no constitutional 

error and thus do not perform the harmless error analysis at all, if they 

find that the petitioner has defaulted procedurally on his claim, or if 

there is no opportunity to address the error because it is discovered only 

after the defendant has already exhausted his state appeals. 

 20 
(2) the district court proceedings were marked by such 

extensive delay as to violate his right to due process.9 We 

are not persuaded by either contention. 

First, the fact that Hassine made the deliberate choice to 

forego seeking relief in the Supreme Court is irrelevant. 

Hassine could not, of course, have anticipated an 

intervening change in the law, but that alone is insufficient 

to prohibit a retroactive application of Brecht on collateral 

review. Hassine made a tactical decision to bypass the 

Supreme Court and to proceed to the district court for 

habeas relief, and we will not reward that decision by 

employing a less stringent standard when reviewing his 

petition. 

Second, while we agree that Hassine experienced 

excessive delay in the processing of his petition, we do not 

believe that he is entitled to habeas relief, including any 

altered standard for harmless error, even if the delay in the 

district court gave rise to a violation of his due process 

rights.10 In Heiser v. Ryan, 951 F.2d 559, 563 (3d Cir. 

1991) ("Heiser I"), we acknowledged that a delay in certain 

collateral proceedings can violate a prisoner's fundamental 

right to due process. We reviewed the claim of a petitioner 

whose state action for post-conviction relief had been 

pending for nearly four years, and we stated that"delays in 

post-verdict process may violate the Due Process Clause. 

. . . The due process clause protects against more than 

delay in trial and sentencing. It guarantees as well the right 

to attack a conviction." Id. 

After Heiser I was remanded to the district court, 

however, we clarified our earlier remarks by revisiting the 

_________________________________________________________________ 

9. Hassine also argues that his appeal is different because no state court 

has ever conducted a Chapman review of his claims. As we discussed 

above, however, we believe that this does not alter our analysis in 

determining whether Brecht applies. 

10. While we certainly do not condone the extraordinary delay in 

processing Hassine's petition, we wish to make clear that we are not 

holding that the delay constituted a violation of due process. We hold 

merely that Hassine would not be entitled to relief through habeas 

corpus proceedings even if the delay did amount to a constitutional 

violation. 

 21 
due process issue in a subsequent appeal. See Heiser v. 

Ryan, 15 F.3d 299 (3d Cir. 1994) ("Heiser II"). In Heiser II, 

we still recognized that excessive delay in state collateral 

proceedings could violate due process, but we made clear 

that while the defendant could seek damages against

counsel responsible for the delay, a writ of habeas corpus 

was not the proper remedy in such a case. Id. at 307. In 

other cases, we have indicated that petitioners experiencing 

delay can seek a writ of mandamus to compel the district 

court to reach a decision on the habeas claim. For example, 

in Madden v. Myers, we addressed a petitioner's argument 

that mandamus was warranted where seven months had 

elapsed since the filing of the Magistrate Judge's Report 

and Recommendation without any action by the district 

court. 102 F.3d 74, 76 (3d Cir. 1996). We ultimately denied 

the request, but, in our only published opinion on this 

issue, we noted that the petitioner's claims of delay had 

"force" and were "of concern." Id. at 79. Moreover, we stated 

that "[a]lthough this delay is of concern, it does not yet rise 

to the level of a denial of due process," implying that at 

some point, delay by the district court could become so 

excessive as to warrant the issuance of a writ of 

mandamus. Id. (emphasis added).11 We are not alone in 

entertaining writs of mandamus due to extraordinary

federal delay. See, e.g., Johnson v. Rogers, 917 F.2d 1283, 

1285 (10th Cir. 1990) (granting a writ of mandamus after a 

fourteen-month delay by the district court); McClellan v. 

Young, 421 F.2d 690, 691 (6th Cir. 1970) (granting a writ 

of mandamus where the district court had delayed its 

habeas ruling pending a decision by the Supreme Court).12 

However, while we have shown a willingness to issue

_________________________________________________________________ 

11. In fact, a review of our unpublished opinions reveals that we 

routinely entertain mandamus petitions complaining of extraordinary 

delay in habeas corpus proceedings at the district court level. 

12. We hasten to add that "[t]he remedy of mandamus is a drastic one, 

to be invoked only in extraordinary circumstances." Kerr v. United States 

Dist. Ct., 426 U.S. 394, 402 (1976). Thus, a habeas petitioner seeking 

mandamus in these cases must experience extraordinary delay, "must 

have no other adequate means to obtain the desired relief, and must 

show that the right to issuance is clear and indisputable." Madden, 102 

F.3d at 79. 

 22 
writs of mandamus and to entertain lawsuits for damages, 

we have never granted habeas relief because of a delay in 

the processing of a petition, and we decline to do so here. 

The federal courts are authorized to provide collateral relief 

where a petitioner is in state custody or under a federal 

sentence imposed in violation of the Constitution or the 

laws or treaties of the United States. 28 U.S.C.SS 2254, 

2255. Thus, the federal role in reviewing an application for 

habeas corpus is limited to evaluating what occurred in the 

state or federal proceedings that actually led to the 

petitioner's conviction; what occurred in the petitioner's 

collateral proceeding does not enter into the habeas 

calculation. We have often noted the general proposition 

that habeas proceedings are "hybrid actions"; they are 

"independent civil dispositions of completed criminal 

proceedings." See, e.g., Santana v. United States, 98 F.3d 

752, 754 (3d Cir. 1996). Federal habeas power is"limited 

. . . to a determination of whether there has been an 

improper detention by virtue of the state court judgment." 

Henderson v. Frank, No. 97-3041, 1998 WL 456254, at *9 

(3d Cir. Aug. 6, 1998). As the Seventh Circuit has noted, 

"[d]elay in processing [a] collateral claim does not make the 

continued imprisonment of the defendant unlawful, and 

hence, does not warrant federal habeas corpus relief." 

Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996), 

cert. denied, ___ U.S. ___, 117 S. Ct. 266 (1996); see also 

Jackson v. Duckworth, 112 F.3d 878, 880 (7th Cir.) (stating 

that "federal habeas corpus cannot remedy a delay in state 

collateral proceedings because such an error has absolutely 

nothing to do with the reason for a defendant's 

confinement"), cert. denied, ___ U.S. ___, 118 S. Ct. 380 

(1997).13 

Therefore, to the extent that a petitioner wishes to claim 

that delay in the processing of a collateral petition violates 

due process, we hold that the petitioner's remedy, if any, is 

through such avenues as a lawsuit for damages or a writ of 

mandamus rather than through the habeas corpus 

_________________________________________________________________ 

13. Providing relief to a petitioner in state custody because of a delay 

in 

the federal courts would also greatly undermine principles of federalism 

and comity by disturbing a state court judgment due to a federal court 

error. 

 23 
proceeding itself. In the case at bar, we thus conclude that 

Brecht still applies in evaluating whether the Doyle violation 

at Hassine's trial constituted harmless error. 

C. Application of the Brecht Standard for Harm less Error 

Having found that Brecht applies to Hassine's petition, we 

proceed next to an examination of whether the district 

court properly concluded that the prosecution's Doyle 

violation was harmless.14 Under Brecht and its progeny, a 

constitutional trial error is not harmless if the court is in 

"grave doubt" as to whether the error had a substantial and 

injurious effect or influence in determining the jury's 

verdict. O'Neal v. McAninch, 513 U.S. 432, 436 (1995). 

"Grave doubt" exists when, "in the judge's mind, the matter 

is so evenly balanced that he feels himself in virtual 

equipoise as to the harmlessness of the error." Id. at 435. 

Moreover, it is "inappropriate to ask whether there was 

sufficient evidence to support the result, apart from the 

phase of the trial affected by the error. The correct inquiry 

is whether the error had a substantial influence on the 

verdict despite sufficient evidence to support the result 

apart from the error." Yohn, 76 F.3d at 523 (citations 

omitted). 

Hassine contends that the Doyle violation could not have 

been harmless because it went to the heart of his defense. 

He maintains that because he was the only witness 

testifying as to his version of the events, and because the 

Doyle error undermined his credibility, it necessarily had a 

"substantial and injurious effect or influence in determining 

the jury's verdict." Brecht, 507 U.S. at 623 (quoting 

Kotteakos, 328 U.S. at 776). In evaluating Hassine's claim, 

we must thus determine whether, and to what extent, the 

jury's decision to accept the State's version of the facts 

rather than Hassine's was influenced by the prosecutor's 

_________________________________________________________________ 

14. The district court also evaluated Hassine's claim under Chapman, 

stating in a footnote that "the record establishes sufficient evidence of 

Hassine's guilt to suggest that the Doyle error would have been harmless 

under the Chapman reasonable-doubt standard as well." Hassine III, 

1997 WL 677152, at *10 n.8. However, we need not reach this issue 

because we have determined that Chapman does not apply. 

 24 
Doyle violation. If the jury disbelieved Hassine and 

convicted him because of the Doyle violation, the error was 

not harmless and we will grant the petition. The crucial 

inquiry is the "impact of the error on the minds of the 

jurors in the total setting." Yohn, 76 F.3d at 523 (citing 

Kotteakos, 328 U.S. at 764). While the nature of the 

evidence against Hassine is important, we must also

examine the phases of the trial affected by the error, and 

determine whether the error had a substantial influence on 

the verdict despite sufficient evidence to support the result 

apart from the error. See id. (citing Kotteakos, 328 U.S. at 

765). In so doing, we must of necessity weigh the impact of 

evidence on the jury and cannot help but make a judgment 

as to how the jury would reasonably perceive Hasssine's 

version of events with and without the Doyle violation. 

At the outset, we note our agreement with the district 

court's finding that the evidence, as mounted through a 

parade of Commonwealth witnesses, was substantial 

indeed. The witnesses testifying as to Hassine's planning of, 

and intent to commit, the crime were numerous, and their 

stories consistent.15 A number of witnesses testified to an 

initial meeting in which Hassine called for Kellet's 

execution. (N.T. 34, 111-12, 743-44, 756-57, 810, 822).16 

Several witnesses also recalled that Hassine had actively 

searched for a weapon to carry out his plan: at the initial 

meeting, he demanded that the other employees try to 

procure a weapon (N.T. 36, 744, 774); he had discussed 

buying a .357 with Breed members Tuite and Schwab (N.T. 

56-59, 555-57, 626-27); he asked his employee Ron 

Wharton to buy a gun and to participate in the plan to kill 

_________________________________________________________________ 

15. The Commonwealth put 34 witnesses on the stand. Among those 

witnesses central to the Commonwealth's case were: 1) Eric Decker, a 

sometime employee of Hassine's who shot the Kellets, Sofield, and 

Puerale; 2) Greg Orlowski, the manager and day-to-day owner of the 

Market; 3) Ron Wharton and Billy Hayes, employees at the Market; 4) 

Valerie Lynch, Decker's girlfriend; 5) Ron Tuite and Joseph "Critter" 

Schwab, members of the Breed motorcycle gang; and 6) Theodore 

Camera, a tenant of the Hassine family and a former classmate of 

Hassine's. 

16. Ron Wharton recalled Hassine stating that, "He wanted him wasted. 

He had to set an example." (N.T. 744). 

 25 
Kellet (N.T. 747, 760); and he visited his tenant Theodore 

Camera and asked Camera to find him a gun. (N.T. 485-86, 

487-88, 490). 

Hassine settled on a weapon for the shootings: a stolen 

.25 caliber automatic handgun. (N.T. 933). Both Decker 

and Wharton testified that Hassine gave Decker the.25 

while the three were in the Market van. (N.T. 53, 749).17 

Hassine and Decker also went to a gun store where Hassine 

bought a box of ammunition and signed for the purchase. 

(N.T. 59-60, 708-10). 

After buying the bullets, Decker and Hassine drove by 

Kellet's house, where Hassine told Decker to shoot him 

then and there with the .25. (N.T. 61). Decker declined 

because it was daytime, and a witness was present. (N.T. 

61-62). Hassine and Decker repeatedly test fired the gun 

into the back wall of the store, but the .25 was 

malfunctioning and had to be put aside, despite their 

attempts to fix it. (N.T. 58-60, 62-63, 750-52, 811-12).18 

Hassine and his co-defendant Orlowski also met with

Breed members Tuite and Schwab to discuss killing Kellet. 

After bailing Tuite out of jail on a gun charge involving the 

.357, Hassine contacted him about a "deal" involving Kellet, 

and the four met to discuss a contract killing. (N.T. 557, 

560, 560-61, 562, 627, 630, 753-55).19 Tuite and Schwab's 

asking price of $1500 was too high, however, so the four 

agreed instead that they would beat Kellet up for $500 

($250 credit for the bail and $250 for the beating). (N.T. 

560-62, 563, 628-629, 632).20 Rather than attack Kellet, as 

_________________________________________________________________ 

17. Decker testified that Hassine handed him the gun and stated "here, 

hit him in the head and leave it there." (N.T. 53).

18. The .25, a spent shell, and photos of the holes in the Market wall 

were entered into evidence. (N.T. 51-52, 792-97, 800-01). 

19. Both Tuite and Schwab testified that Hassine appeared upset and 

angered by the challenge Kellet posed to his authority. Tuite: "Hassine 

was pissed off--pissed off that somebody would step on his toes." (N.T. 

563). Schwab: Hassine was "ruffled because somebody messed with one 

of his boys." (N.T. 628). 

20. Schwab mentioned that Orlowski and Hassine wanted to continue to 

consider the possibility of killing Kellet for money: "They were haggling 

back and forth about the fifteen hundred bucks, so I took the two fifty. 

They wanted a night to think about if it was worth fifteen hundred bucks 

to waste Kellet." (N.T. 629-30). 

 26 
agreed, however, Tuite and Schwab decided to warn Kellet 

that Hassine and Orlowski wanted to kill him and kept the 

$250. (N.T. 566, 630).21 

The Commonwealth also presented evidence of Hassine's 

conduct both at and after the incident that pointed to his 

guilt. On the night of the shootings, Decker testified that he 

met Hassine at the market and said, "Tonight's the night-- 

this cat has got to go. We'll use your gun. I want two 

hundred and fifty dollars." (N.T. at 77, 218-19). Hassine 

agreed and said he would come back to pick Decker up 

with his car. Id. Decker further testified that Hassine then 

drove him to Trenton and retrieved the .380 Llama 

handgun used in the shootings from his parents' house; 

gave him directions to Kellet's house; told him that he 

would wait for him and drive him away after the shootings; 

and gave him a Yankees batting helmet to disguise himself 

during the shootings. (N.T. 83-85, 87-88). 

Hassine then went to Orlowski's house, where Hassine 

and Orlowski met a third person, Michael Thompson 

("Thompson"), who testified that all three got into his car. 

(N.T. 861-63). Hassine was carrying a metal pipe. (N.T. 

870). Hassine told Thompson to drive to the parking lot 

across the street from Kellet's residence and then to other 

locations; Hassine whistled out the window from time to 

time, and at one point Hassine told Thompson to get out of 

the car and call for "Eric". (N.T. 863-870, 874-884, 905-07).22 

In the course of their drive, they heard two shots, and 

Hassine stated, "Oh shit, that's my father's gun, I hope that 

asshole doesn't get caught." (N.T. 868-69, 881, 1224). 

After the murder, when Hassine and Orlowski returned 

from their attempts to find Decker, Hassine told Orlowski 

that they still had to find Decker, because he was afraid 

Decker would be arrested. (N.T. 1227-28). The following 

morning, Hassine told his employee Wharton to drive the 

pair to Decker's apartment, so they could try once again to 

retrieve the .380 from Decker. (N.T. 761). When they 

_________________________________________________________________ 

21. Hassine later complained that Tuite and Schwab had "ripped him 

off." (N.T. 755). 

22. In the course of their drive, the three went to the Dunkin' Donuts, 

where Hassine mentioned that they had been seen. (N.T. 867). 

 27 
realized Decker had been arrested, Hassine told Decker's 

girlfriend, Valerie Lynch, to get rid of the gun. (N.T. 761-63, 

1043-44, 1046-47). As word spread that the case against 

Hassine was building, Tuite and Schwab decided to try to 

intimidate Hassine into giving them $10,000 to kill

Commonwealth witnesses, and Hassine considered their 

demands but did not ask them to follow through on the plan.23 

(N.T. 568, 572, 577-78, 631-32). 

Not only did the Commonwealth's case present evidence 

of Hassine's guilt but also evidence of both a coverup and 

instances of lying that detracted from Hassine's credibility. 

On the night of the shootings, Hassine told his codefendant Orlowski to keep his "mouth shut" if the police 

questioned him. (N.T. 1228). Hassine's attempts to 

influence others continued as the investigation intensified. 

After Decker was arrested for the shootings, Hassine tried 

to make Orlowski sign a statement holding him responsible 

for the crimes, and the two held practice sessions in which 

Hassine and Orlowski practiced Orlowski's story. (N.T. 

1388-90). Valerie Lynch testified that Hassine told her to lie 

about his and Decker's whereabouts the night of the

shootings, saying: "Remember, Valerie, I was in New York, 

and Eric Decker was at home." (N.T. 764-65, 1051-52). In 

the course of an intercepted phone conversation, Hassine 

queried Thompson about what Thompson had told the 

police during questioning, and in the course of that 

conversation the two agreed, ostensibly, that they would 

keep each other out of the case.24 (N.T. 892-94, 901). 

_________________________________________________________________ 

23. Schwab testified as follows: 

 He was all frazzled; he was confused -- "I can't think--I don't 

know 

 what to do" -- imbalanced -- all that shit, and he walked around. 

 He said he would talk to his old man to see if he could come up 

 with some bucks. 

 Q: Did you talk to him any more after that, Mr. Schwab? 

 A: Yeah -- one more time . . . . I told him the pressure was coming 

 down on him. And he said he would try again to get the money. I 

 told him I would take a van load of steaks--pack the van with 

 steaks and give me five grand. (N.T. 631-32). 

24. V: So, as far as they're concerned, you know, you were with 

somebody else that night, right? 

 28 
Hassine had made promises to Decker as a part of his 

agreement to kill Kellet -- an apartment, money, and a 

future on "easy street" -- and he continued the practice of 

offering money or services for cooperation from others after 

the shootings had taken place. (N.T. 63, 111, 752-53, 773). 

In the course of the conversation in which he urged her to 

lie, Hassine also promised Lynch that he would help her 

and her child out with money, cuts of meat, or anything 

else she needed. (N.T. 1052). Hassine also promised

Thompson, in the course of their intercepted phone 

conversation, that Thompson should look into buying

Kellet's house, and that the two could enter into a deal 

whereby Hassine would put up the money for the house 

and the surrounding property, and Thompson could keep 

the house while Hassine developed the lot. (N.T. 896-97, 

897-900). In his own testimony, Hassine admitted that he 

had no intention of buying the house or developing the lot, 

but he was making the promise because he wanted to know 

what Thompson told the police. (N.T. 1563-64).25 

Notwithstanding the weight of the evidence presented by 

the prosecution, we would have little difficultyfinding that 

the Doyle violation had substantially influenced the jury if, 

apart from the violation, the phase of the trial most directly 

impacted, namely, Hassine's testimony, presented a strong 

counter to the state's evidence. But that is not the case. 

Hassine's story was undermined not only by evidence of his 

_________________________________________________________________ 

M: Yeah, as far as they're concerned I wasn't even with you. 

V: You weren't. 

M: Yeah. (N.T. 901). 

25. The weaknesses of the Commonwealth's witnesses were exposed in 

the course of both direct and cross-examination. Decker was cross 

examined on his frequent use of methamphetamine, prior record, 

shifting stories, and his cooperation with the Commonwealth. (N.T. 116- 

17, 130-32, 132-35, 136, 138, 215). Other witnesses were questioned 

about their prior denials to the police, changes in accounts, drug usage, 

conflicts with Hassine, bias in favor of Orlowski, or reluctance to 

testify. 

(N.T. 569-70, 632-33, 769-71, 784-86, 787-88, 789, 789-90, 872, 903, 

963-64). As such, the jury had ample opportunity to consider the 

credibility and relative sophistication of the Commonwealth's witnesses. 

 29 
disregard for the truth, but by his own testimony in which 

he set forth strained and unrealistic explanations for his 

conduct and portrayed himself as a mild mannered store 

manager and law student -- a portrayal strikingly at odds 

with other evidence depicting his behavior as controlling, 

crude, and vulgar. In the course of his testimony, Hassine 

portrayed himself as a diligent law student who spent the 

bulk of his summer studying for the New Jersey and New 

York bar exams, which he did not pass. (N.T. 1436-38, 

1450-52). Hassine also presented himself as a sophisticated 

individual versed in business practices who was concerned 

about the management of the market. Hassine testified that 

he made Orlowski run the store efficiently, and that he had 

threatened to close the store if Orlowski did not run it in a 

cost-effective manner. (N.T. 1414-1422, 1492-93). He also 

testified that he was aware of the drug dealing at the store 

after Kellet had beaten and stolen money from Orlowski, 

but that he never participated in or profited from the drug 

dealing. (N.T. 1424, 1510).26 He testified that when Wharton 

took $40 from the register to front a drug deal, he punched 

him, but did so because he wanted nothing to do with 

Wharton's activities. (N.T. 1426-27, 1492-93). 

Hassine denied having any feud with Kellet, having any 

animosity toward Kellet, or saying that he wanted Kellet 

killed or "wasted," claiming instead that he had only 

wanted Kellet to be put in jail. (N.T. 1428-29, 1432-34, 

1496, 1497-98, 1500, 1553).27 Hassine also testified that by 

saying he wanted to make an "example of Kellet," he meant 

that any time Kellet made any motion toward him or any 

contact with him the police should be called. (N.T. 1429). 

Hassine also testified that he had, in fact, rebuffed Tuite 

and Schwab's offer to kill Kellet for him by indicating that 

_________________________________________________________________ 

26. Wharton had testified that Hassine insisted that the drugs be "cut" 

to increase profits. (N.T. 780-81). Hassine also referred to Thompson as 

"Mr. Reds" in his testimony and in the course of the recorded 

conversation played for the jury. (N.T. 1470, 1507-08). 

27. Kellet himself testified to the pattern of escalating threats and 

harassment between himself, Orlowski, and Hassine prior to the 

shootings, as well as prior tensions between himself and Hassine. (N.T. 

382-83, 394-99). 

 30 
the situation with Kellet was being handled by the police. 

(N.T. 1455-59). Hassine claimed to have no idea why Tuite 

and Schwab would think he would want Kellet killed. (N.T. 

1455, 1492). 

Hassine admitted that he had engaged in a complex 

course of behavior involving guns, but testified that his 

search for a weapon was undertaken in order to find

adequate protection for the store. He conceded that he had 

contacted Camera about obtaining a gun, even though he 

knew he could purchase a gun legally; that he had bought 

bullets and signed the register at the gun store because 

Decker had asked him to do so, even though he knew that 

Decker was on probation for a gun charge; and that he had 

shot up the wall of the store with Decker because Decker 

wanted to demonstrate problems with the gun and he just 

got "carried away" in the process. (N.T. 1430-31, 1436, 

1445-46, 1449-50, 1549-52, 1553, 1556-58). Hassine also 

explained his conduct on the night of the shootings as 

being motivated by his desire to get his father's gun back 

and to prevent a crime from occurring. (N.T. 1466-68, 

1526-29, 1521-32). 

Hassine's version of events was further undercut by

evidence that he was not the mild-mannered person he 

portrayed himself to be. There was testimony as to his 

threatening and controlling Orlowski, his need to be a boss 

of others and his desire to protect his turf and his 

authority, even if doing so entailed resort to violence. (N.T. 

488-89, 490, 555, 563, 628, 755, 783, 861-62, 816, 1051, 

1441, 1454-55). Other evidence, some of which was 

conceded in Hassine's own testimony, demonstrated that 

Hassine had violent tendencies, through incidents such as 

his pulling Orlowski's finger out of its socket during an 

argument and punching Wharton, and through his 

practices of engaging in threats and feuding. (N.T. 382-83, 

1498, 1508, 1556). 

The Doyle violation occurred as a series of three 

questions in the midst of Hassine's testimony, and, later, in 

two ambiguous references to Hassine's silence in the 

prosecutor's closing argument. (N.T. 1543-1544, E.H. 223, 

259-60). Based on our assessment of the trial evidence, we 

conclude that the questions posed in the midst of Hassine's 

 31 
testimony did not have a substantial or injurious effect on 

the jury's verdict. Nor did the two ambiguous references 

made to a general pattern of silence result in an 

overemphasis on this silence that destroyed the jury's 

ability to look at the evidence in the case, as Hassine 

contends. Rather, these statements were couched within a 

general framework of asking the jury to consider the 

credibility of the witnesses as a whole, and as such, the 

closing provided the jury with ample latitude to evaluate 

Hassine's credibility and the evidence of his guilt apart from 

those particular statements. 

While not minimizing the importance of the right at issue 

or condoning the prosecutor's conduct, we find that the 

actual effect of the Doyle violation on Hassine's credibility 

before the jury and the inferences drawn by that jury, and 

on the jury's determination of guilt or innocence, was 

minimal, as the improper questions and statements 

occurred within a contextual presentation of a story that 

was, on its own, not likely to be viewed as credible. Given 

the overwhelming evidence of Hassine's guilt, and his lack 

of credibility apart from the Doyle violation, we conclude 

that the constitutional error at Hassine's trial was 

harmless; there is little doubt that the prosecutor's Doyle 

violation did not have a "substantial and injurious effect or 

influence in determining the jury's verdict." Brecht, 507 

U.S. at 623 (quoting Kotteakos, 328 U.S. at 776). 

D. The Footnote Nine Exception to Brecht 

Hassine's final argument is that even if the Doyle error 

did not substantially influence the jury, he is still entitled 

to relief under an exception to the harmless error rule 

noted in Brecht. In footnote nine of the Brecht opinion, the 

Supreme Court stated: 

 Our holding does not foreclose the possibility that in 

 an unusual case, a deliberate and especially egregious 

 error of the trial type, or one that is combined with a 

 pattern of prosecutorial misconduct, might so infect 

 the integrity of the proceeding as to warrant the grant 

 of habeas relief, even if it did not substantially 

 influence the jury's verdict. Cf. Greer v. Miller, 483 U.S. 

 32 
 756, 769, 107 S. Ct. 3102, 3110, 97 L. Ed. 2d 618 

 (1987) (Stevens, J., concurring in judgment). 

507 U.S. at 638 n.9. Hassine contends that this casefits 

squarely within the Footnote Nine exception, because the 

state prosecutor committed a "deliberate and especially 

egregious error" at trial. He argues that "it was nothing 

other than deliberate for the very experienced prosecutor to 

persist in pointedly cross-examining Hassine about his 

post-arrest silence," and maintains that it was "anything 

short of deliberate" and egregious when the prosector 

commented on Hassine's post-arrest silence during closing 

arguments. (Pet'r Br. at 34 n.14.)28 However, after reviewing 

the origins of the Footnote Nine exception and the few cases 

in which it has been applied, we conclude that the 

prosecutor's Doyle violation did not rise to the level needed 

to warrant habeas relief.29 

As the citation in Footnote Nine acknowledges, the 

exception to Brecht's harmless error standard has its roots 

in the views of Justice Stevens, who has written on several 

occasions that habeas petitions should be granted where 

trial errors are truly extraordinary, even if they are found to 

constitute harmless error. Brecht itself cites to Justice 

Stevens' concurrence in Greer v. Miller, 483 U.S. at 767, 

which, in turn, refers to the Justice Stevens dissent in Rose 

v. Lundy, 455 U.S. 509, 538 (1982). In Rose, Justice 

Stevens argued that there are at least four types of 

constitutional error: 

 The one most frequently encountered is a claim that 

 attaches a constitutional label to a set of facts that 

_________________________________________________________________ 

28. Hassine does not contend that the error falls within Footnote Nine's 

prohibition on errors "combined with a pattern of prosecutorial 

misconduct." Brecht, 507 U.S. at 638 n.9. He argues only that the Doyle 

violation was sufficiently "deliberate and . . . egregious" to warrant 

habeas relief. We will thus limit our analysis to this aspect. 

29. It is worth noting that Brecht does not truly establish an exception 

for "deliberate and especially egregious errors;" it merely "does not 

foreclose the possibility" that such an exception could exist. 507 U.S. 

638 n.9. Nevertheless, for purposes of this discussion, we will assume 

arguendo that Footnote Nine does support awarding habeas relief for 

egregious errors in an appropriate case. 

 33 
 does not disclose a violation of any constitutional right. 

 . . . The second class includes constitutional violations 

 that are not of sufficient import in a particular case to 

 justify reversal even on direct appeal, when the 

 evidence is still fresh and a fair retrial could be 

 promptly conducted. . . . A third category includes 

 errors that are important enough to require reversal on 

 direct appeal but do not reveal the kind of fundamental 

 unfairness to the accused that will support a collateral 

 attack on a final judgment. . . . The fourth category 

 includes those errors that are so fundamental that they 

 infect the validity of the underlying judgment itself, or 

 the integrity of the process by which that judgment 

 was obtained. 

Id. at 543-44 (dissenting opinion) (citations and footnote 

omitted). 

It is, of course, this fourth category that the Court 

referenced eleven years later in Brecht as a potential 

exception to the harmless error standard. Justice Stevens 

has admitted that "[t]his category cannot be defined 

precisely," id. at 544, but his opinions in Rose and Greer do 

provide some guidance as to which infractions are to be 

considered `fundamentally' unfair. In Rose, Justice Stevens 

explained that the "error that falls in this category is best 

illustrated by recalling the classic grounds for the issuance 

of a writ of habeas corpus -- that the proceeding was 

dominated by mob violence; that the prosecutor knowingly 

made use of perjured testimony; or that the conviction was 

based on a confession extorted from the defendant by 

brutal methods." Id. (footnotes omitted). In his view, 

"[e]rrors of this kind justify collateral relief no matter how 

long a judgment may have been final and even though they 

may not have been preserved properly in the original trial." 

Id. (footnotes omitted). Further, in Greer, Justice Stevens 

applied these principles to Doyle violations, writing that 

"there may be extraordinary cases in which the Doyle error 

is so egregious, or is combined with other errors or 

incidents of prosecutorial misconduct, that the integrity of 

the process is called into question. In such an event, 

habeas corpus relief should be afforded." 483 U.S. at 769 

(concurring). 

 34 
Brecht itself sheds light on the Footnote Nine exception 

as well. Brecht involved a petitioner convicted of first-degree 

murder and sentenced to life imprisonment. The petitioner 

took the stand at trial and admitted that he had fatally 

wounded his brother-in-law, Roger Hartman, but he 

claimed that the killing was accidental. Over the objections 

of defense counsel, and in violation of Doyle , the State 

asked the petitioner on cross-examination and again on recross-examination "whether he had told anyone at any time 

before trial that the shooting was an accident, to which 

petitioner replied `no.' " 507 U.S. at 625. The prosecutor 

then made three glaring references to the petitioner's pretrial silence during closing arguments, urging the jury to 

" `remember that Mr. Brecht never volunteered until in this 

courtroom what happened in the Hartman residence,' " 

stating that " `[h]e sits back here and sees all of our 

evidence go in and then he comes out with this crazy 

story,' " and reminding the jury that the petitioner " `didn't 

say' " this was an accident, " `[n]o, he waited until he hears 

our story.' " Id. at 625 n.2 (quoting the record in the case). 

Nevertheless, the Supreme Court still applied a harmless 

error standard, so that the facts in Brecht did not involve "a 

deliberate and especially egregious error of the trial type, or 

one that is combined with a pattern of prosecutorial 

misconduct" as reflected in Footnote Nine. Id. at 638 n.9. 

As the Court wrote, "[w]e, of course, are not presented with 

such a situation here." Id.30 

With this in mind, we too conclude that we are not here 

presented with the type of egregious situation alluded to in 

Footnote Nine. First, the error in this case was much less 

_________________________________________________________________ 

30. We are aware of only two federal circuit court opinions discussing the 

Footnote Nine exception in detail, but neither of these cases is helpful 

to 

our discussion. We addressed the Brecht exception in Robinson v. 

Arvonio, 27 F.3d 877, 886 (3d Cir. 1994), but Robinson was later vacated 

on appeal to the Supreme Court and is no longer good law. See Robinson 

v. Arvonio, 513 U.S. 1186 (1995). In addition, the Ninth Circuit 

discussed Footnote Nine in Hardnett v. Marshall, 25 F.3d 875, 879-81 

(9th Cir. 1994), but, in contrast to the instant case, Hardnett involved 

an 

error that was ultimately found to be irrelevant to the jury's verdict. We 

will thus limit our analysis to Supreme Court precedents discussing the 

Brecht exception. 

 35 
egregious than in Brecht where the Court did employ a 

harmless error analysis. At Hassine's trial, objections were 

immediately raised and sustained, Hassine never answered 

the improper questions, and the prosecutor's references to 

Hassine's silence during closing arguments were 

ambiguous. See supra. Therefore, if the Supreme Court 

believed that Brecht was not "of course" a Footnote Nine 

case, we fail to see how Hassine's case could possibly 

qualify under the Brecht exception. 

Second, we do not believe that the prosecutor's actions 

here were "deliberate and especially egregious" within the 

meaning of Footnote Nine. As we discussed supra, there 

was some evidence that Hassine had opened the door to 

questions about his post-arrest silence by testifying that he 

was "available" for questioning by the police. In fact, this is 

precisely what the Pennsylvania Superior Court found on 

direct appeal of Hassine's claim. See Hassine I, 490 A.2d at 

451. Thus, while we now disagree with the Superior Court 

and find that the questions were inappropriate, we cannot 

say that the prosecutor's actions were so deliberate and 

egregious as to warrant habeas relief that bypasses

harmless error scrutiny. 

Finally, we conclude that the Doyle violation did not "so 

infect the integrity of the proceeding," Brecht, 507 U.S. at 

638 n.9, or "call[ ] into question" the integrity of the trial 

process, Greer, 483 U.S. at 769 (Stevens, J., concurring), so 

as to warrant the grant of habeas relief to Hassine. As we 

have discussed, the Doyle violation in this case consisted of 

three unanswered questions, occupying just one page in a 

transcript of more than 1500 pages of testimony, in

addition to two ambiguous references to Hassine's silence 

during closing arguments. Moreover, the State called thirtyfour witnesses on its behalf and impeached Hassine's 

testimony on several different grounds. Under these

circumstances, we do not believe that Hassine's case can be 

classified as the "unusual," Brecht, 507 U.S. at 638 n.9, or 

"extraordinary," Greer, 483 U.S. at 769 (Stevens, J., 

concurring), proceeding in which relief can be granted 

pursuant to Footnote Nine. The Doyle violation at Hassine's 

trial was significant, but we remain confident that its 

impact on the entire case was not so profound as to infect 

the very integrity of Hassine's conviction. 

 36 
IV. CONCLUSION 

For the foregoing reasons, the district court's Order dated 

October 30, 1997, will be affirmed. 

 37 
NYGAARD, Circuit Judge, Concurring. 

I believe the majority reaches the correct result, agree 

with its reasoning, and, so I concur in its judgment. I write 

separately only to add my thoughts to Section III, D of its 

opinion, and express my indignation with the prosecuting 

attorney's misbehavior. 

The concept of an accused's right to remain silent, to be 

free from prosecutorial comment about that silence, and to 

be free from any adverse consequences from accepting this 

constitutional protection, is so fundamental in our

jurisprudence, and is so well known among practitioners, 

that I cannot conceive of any alternative but that the 

prosecutor's use of Hassine's silence was both deliberate 

and calculated to invite the jury to draw an adverse 

inference from it. Moreover, I believe this deliberate 

violation of Mr. Hassine's constitutional rights is egregious 

-- indeed, it is outrageous. The prosecutor not only 

questioned Hassine about his silence, but continued to do 

so even after objections to the questions were sustained by 

the trial court. This arrogance towards the court's ruling 

and the accused's rights, is reprehensible. 

Nonetheless, on this habeas corpus review, I cannot say 

that his behavior, although unprofessional, "so infected" the 

trial's integrity, that it requires us to grant Hassine relief. 

Moreover, even though the prosecutor again made reference 

to Hassine's silence in his closing argument, considering 

the entire record, I agree with the majority -- we cannot say 

that his action constituted a "pattern" of misconduct. The 

prosecutor's act was unfair, for which he deserves a stern 

rebuke. Hassine, nonetheless, received a fair trial. 

Hence, although the prosecutor's behavior came very

close to crossing the line of harm, and came even closer to 

that "unusual" case in which relief could be granted 

regardless of harm, I agree with the majority that it did not. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 38