United States v. Gary A. Newman, 943 F.2d 1155 (9th Cir. 1991). · Go Syfert
United States v. Gary A. Newman, 943 F.2d 1155 (9th Cir. 1991). Cases Citing This Book View Copy Cite
82 citation events (33 in the last 25 years) across 10 distinct courts.
Strongest positive: State v. Cooper (ohioctapp, 2020-09-03)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 37 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. Cooper
Ohio Ct. App. · 2020 · confidence medium
Ottawa No. OT-95-051, 1996 Ohio App. LEXIS 3286 , 11 (Aug. 2, 1996), quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991). * * * In State v. Leach, 102 Ohio St.3d 135 , 2004-Ohio-2147 , 807 N.E.2d 335 , the Ohio Supreme Court held that use of a defendant’s pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment, and that the use of a defendant’s post-arrest, post-Miranda invocation of his right to counsel as substantive evidence of guilt violates the Fourteenth Amendment.
discussed Cited as authority (rule) (HC) Jackson v. Biter
E.D. Cal. · 2020 · confidence medium
When considering the harmlessness of a Doyle 5 violation, considerations include: “(1) the extent of [the] comments ..., (2) whether an inference 6 of guilt from silence was stressed to the jury, and (3) the extent of other evidence suggesting [the] 7 defendant's guilt.” Hurd, 619 F.3d at 1090 (quoting United States v. Velarde-Gomez, 269 F.3d 8 1023, 1034-35 (9th Cir. 2001) (en banc)); United States v. Newman, 943 F.2d 1155, 1158 (9th 9 Cir. 1991) (same). 10 (i) The nature of the prosecutor’s comments 11 One of the themes of the prosecution’s case was that petitioner never told anyone …
discussed Cited as authority (rule) State v. Walker
Ohio Ct. App. · 2020 · confidence medium
In considering whether Walker was prejudiced by any violation of her rights, we review for harmless error, and “this court must consider the extent of the comments, whether an inference of guilt from silence was stressed to the jury, and the extent of other evidence suggesting Walker’s guilt.” Larger at ¶ 18, quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991). {¶ 46} The state did not present the conversation between Walker and detectives as evidence of guilt at trial.
discussed Cited as authority (rule) (HC)Tran v. Baughman
E.D. Cal. · 2020 · confidence medium
When determining 21 whether a Doyle violation constitutes harmless error, this court considers three factors: “[1] the 22 extent of comments made by the witness, [2] whether an inference of guilt from silence was 23 stressed to the jury, and [3] the extent of other evidence suggesting defendant's guilt.” United 24 States v. Velarde–Gomez, 269 F.3d 1023, 1034 (9th Cir. 2001) (en banc) (quoting United States 25 v. Newman, 943 F.2d 1155, 1158 (9th Cir. 1991)). 26 //// 27 //// 28 //// 1 Analysis 2 Here, during cross-examination of petitioner at trial, the following exchange occurred: 3 [PROS…
cited Cited as authority (rule) State v. Rosa
Ohio Ct. App. · 2019 · confidence medium
Ottawa No. OT-95-051, 1996 Ohio App. LEXIS 3286 , 11 (Aug. 2, 1996), quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991).
discussed Cited as authority (rule) (HC) Williams v. High Desert State Prison
E.D. Cal. · 2019 · confidence medium
When determining whether a Doyle violation constitutes harmless error, this Court considers three factors: “[1] the extent of comments made by the witness, [2] whether an inference of guilt from silence was stressed to the jury, and [3] the extent of other evidence suggesting defendant’s guilt.” United States v. Velarde-Gomez, 269 F.3d 1023, 1034 (9th Cir. 2001) (en banc) (quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir. 1991)). 13 The Court of Appeal reasoned: [Williams] admitted that he was carrying a gun on the night of the shooting, even though he knew there was a warra…
discussed Cited as authority (rule) United States v. Jose Ramirez-Estrada
9th Cir. · 2014 · confidence medium
We consider three factors in deciding the question of harmlessness: “[1] the extent of comments made by the witness, [2] whether an inference of guilt from silence was stressed to the jury, and [3] the extent of other evidence suggesting defendant’s guilt.” Id. (alterations in original) (quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991)).
discussed Cited as authority (rule) United States v. Ahearn
9th Cir. · 2009 · confidence medium
When determining whether the government has established that a Doyle violation constituted harmless error, this court considers three factors: “[1] the extent of comments made by the witness, [2] whether an inference of guilt from silence was stressed to the jury, and [3] the extent of other evidence suggesting defendant’s guilt.” United States v. Velarde-Gomez, 269 F.3d 1023, 1034 (9th Cir.2001) (en banc) (quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991)).
discussed Cited as authority (rule) United States v. Ahearn
9th Cir. · 2009 · confidence medium
When determining whether the government has established that a Doyle violation constituted harmless error, this court considers three factors: “[1] the extent of comments made by the witness, [2] whether an inference of guilt from silence was stressed to the jury, and [3] the extent of other evidence suggesting defendant’s guilt.” United States v. Velarde-Gomez, 269 F.3d 1023, 1034 (9th Cir.2001) (en banc) (quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991)).
discussed Cited as authority (rule) United States v. Lopez (2×)
9th Cir. · 2007 · signal: cf. · confidence medium
Cf. Velarde-Gomez, 269 F.3d at 1035 , and United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991).
cited Cited as authority (rule) United States v. Lopez
9th Cir. · 2007 · signal: cf. · confidence medium
Cf. Velarde-Gomez, 269 F.3d at 1035 , and United States v. Newman, 943 F.2d 1155, 1158 (9th Cir. 1991).
cited Cited as authority (rule) United States v. Lopez
9th Cir. · 2007 · signal: cf. · confidence medium
Cf. Velarde-Gomez, 269 F.3d at 1035 , and United States v. Newman, 943 F.2d 1155, 1158 (9th Cir. 1991).
discussed Cited as authority (rule) United States v. Marcos Alonzo Hernandez
9th Cir. · 2007 · confidence medium
“In the context of comments on silence, we consider three factors: ‘[1] the extent of comments made by the witness, [2] whether an inference of guilt from silence was stressed to the jury, and [3] the extent of other evidence suggesting defendant’s guilt.’ ” Velarde-Gomez, 269 F.3d at 1034-35 (alterations in original) (quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991) (applying harmless error review)).
discussed Cited as authority (rule) United States v. Hernandez
9th Cir. · 2007 · confidence medium
“In the context of comments on silence, we consider three factors: ‘[1] the extent of comments made by the witness, [2] whether an inference of guilt from silence was stressed to the jury, and [3] the extent of other evidence suggesting defendant’s guilt.’ ” Velarde-Gomez, 269 F.3d at 1034-35 (alterations in original) (quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir. 1991) (applying harmless error review)).
cited Cited as authority (rule) United States v. Jorge Enrique Lopez
9th Cir. · 2006 · signal: cf. · confidence medium
Cf. Velarde-Gomez, 269 F.3d at 1035 , and United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991).
cited Cited as authority (rule) United States v. Lopez
9th Cir. · 2006 · signal: cf. · confidence medium
Cf. Velarde-Gomez, 269 F.3d at 1035 , and United States v. Newman, 943 F.2d 1155, 1158 (9th Cir. 1991).
examined Cited as authority (rule) United States v. Ramon Velarde-Gomez (4×)
9th Cir. · 2001 · confidence medium
In the context of comments on silence, we consider three factors: "[1] the extent of comments made by the witness, [2] whether an inference of guilt from silence was stressed to the jury, and [3] the extent of other evidence suggesting defendant's guilt." United States v. Newman, 943 F.2d 1155, 1158 (9th Cir. 1991) (applying harmless error review); see also Kallin, 50 F.3d at 693 (quoting and following Newman); Scarborough v. Arizona, 531 F.2d 959, 962 (9th Cir. 1976) (relied upon by Newman).
discussed Cited as authority (rule) People v. Dennis
Mich. · 2001 · confidence medium
See United States v. Baker, 999 F.2d 412, 416 (C.A.9, 1993), stating that counsel's "subjective intent cannot save his overly broad statements." The majority glosses over the fact that the entire series of questions and answers contrasted defendant's and the other witnesses' degree of cooperation in front of the jury. [6] Apparently, Nancy Kennebrew was charged at one point with possession of the safe's contents. [7] See Moreno, supra at 473-474 , finding error where the prosecutor's question's "natural consequence, if not purpose," was to draw meaning from the defendant's post- Miranda silenc…
discussed Cited as authority (rule) Haberek v. Maloney
D. Mass. · 2000 · confidence medium
See Greer v. Miller, 483 U.S. 756, 764 , 107 S.Ct. 3102, 3107 , 97 L.Ed.2d 618 (1987); see also Freeman v. Class, 95 F.3d 639, 643 (8th Cir.1996) (prosecutor specifically elicited from police officer three occasions of defendant's post-arrest silence); United States v. Newman, 943 F.2d 1155, 1157 (9th Cir.1991) (prosecutor elicited testimony regarding defendant’s decision to remain silent on three occasions with focused questions); Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir.1987) (prosecutor's repeated questions showed a manifest intent to highlight the defendant’s silence). 3 .
examined Cited as authority (rule) The PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Cesar Celestian VELORIA, Defendant-Appellant (3×) also: Cited "see"
9th Cir. · 1998 · confidence medium
Doyle v. Ohio, 426 U.S. 610, 619 , 96 S.Ct. 2240, 2245 , 49 L.Ed.2d 91 (1976); United States v. Newman, 943 F.2d 1155, 1157 (1991).
discussed Cited as authority (rule) State v. Byrd
Utah Ct. App. · 1997 · confidence medium
The prosecution’s use of post-Miranda silence “ ‘prejudice[s] the defendant by attempting to create an inference of guilt in the jury’s mind.’ ” United States v. Newman, 943 F.2d 1155, 1157 (9th Cir.1991) (quoting United States v. Wycoff, 545 F.2d 679, 681 (9th Cir.1976)); see also State v. Saunders, 98 Ohio App.3d 355 , 648 N.E.2d 587, 590 (1994) (noting effect of prosecutor’s comment was to suggest guilt of defendant, “because an innocent person would not have remained silent”).
discussed Cited as authority (rule) United States v. Jack P. Kallin
9th Cir. · 1995 · confidence medium
The court must determine “whether the prosecutor’s conduct was harmless by ‘considering the extent of comments made by the witness, whether an inference of guilt from silence was stressed to the jury, and the extent of other evidence suggesting defendant’s guilt.’ ” Foster, 985 F.2d at 468 (quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991)).
discussed Cited as authority (rule) United States v. Juan Arevalo
9th Cir. · 1994 · confidence medium
Though it is well settled that the prosecution may not elicit evidence of a defendant's post-arrest silence during its case-in-chief, see United States v. Newman, 943 F.2d 1155, 1157 (9th Cir.1991), it's unclear whether the same rule applies to evidence of pre-arrest silence.
discussed Cited as authority (rule) United States v. Jeffrey L. Foster and Karla Foster (2×)
9th Cir. · 1994 · confidence medium
The error here is more serious than in United States v. Newman, 943 F.2d 1155, 1157-58 (9th Cir.1991), where we followed the Greer standard and found a Doyle violation even though the judge instructed the jury to disregard the testimony.
discussed Cited as authority (rule) Raoul Edward Marvin v. Vernon Smith, Superintendent Attorney General of the State of California
9th Cir. · 1993 · confidence medium
Even under the pre-Brecht standard, the alleged Doyle error was "harmless beyond a reasonable doubt," United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991), given the strength of evidence against Marvin: He concealed the purported location of the fictional guayule operation despite numerous attempts by investors to find it; he fabricated testimony about the operation's finances; his former attorney had never heard of "Sharon Stone," the American Indian through whom Marvin supposedly dealt with Sioux investors; the state's witnesses had not heard of either the Western Tribal Association o…
cited Cited as authority (rule) United States v. Robert Perry Frogge, AKA Jack Manion and Jock Manion
9th Cir. · 1993 · confidence medium
Cf. Baker, slip op. at 7469-73; United States v. Newman, 943 F.2d 1155, 1157-58 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Yi-Hai Lin, AKA Chi Ching Lo (2×) also: Cited "see"
9th Cir. · 1993 · confidence medium
In making our determination, we consider "the extent of comments made by the witness, whether an inference of guilt from silence was stressed to the jury, and the extent of other evidence suggesting defendant's guilt." United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991). 18 Lin contends that his Fifth Amendment right to silence was violated by testimony from Agent Gallagher during the first day of trial and by comments the government made in its closing and rebuttal arguments on the second day.
cited Cited as authority (rule) United States v. Stephen Baker, United States of America v. Philip L. Caban
9th Cir. · 1993 · confidence medium
United States v. Foster, 985 F.2d 466, 468 (9th Cir.1993); United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991).
examined Cited as authority (rule) United States v. Louisiana Johnson Owens (3×) also: Cited "see", Cited "see, e.g."
9th Cir. · 1993 · confidence medium
Doyle v. Ohio, 426 U.S. 610, 619 (1976); United States v. Newman, 943 F.2d 1155, 1157 (9th Cir.1991).
discussed Cited as authority (rule) United States v. Francisco Oscar Dessens-Fimbres, United States of America v. Oscar Alfredo Liera, United States of America v. Raul Martinez, United States of America v. Rafael Jose Rivera-Coronado
9th Cir. · 1993 · confidence medium
United States v. Endicott, 869 F.2d 452, 454 (9th Cir.1989). 28 "The Supreme Court has clearly stated that the use for impeachment purposes of a defendant's silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause...." United States v. Newman, 943 F.2d 1155, 1157 (9th Cir.1991) (internal quotations and brackets omitted) (citing Doyle v. Ohio, 426 U.S. 610 (1976)). 29 In Greer v. Miller, 483 U.S. 756 (1987), the Supreme Court held there was no violation of the defendant's right to remain silent after arrest because: (1) the court sustained the objecti…
discussed Cited as authority (rule) United States v. Stevie A. Gray
9th Cir. · 1992 · confidence medium
"When deciding whether the prosecutor's conduct was harmless, we will consider the extent of comments made by the witness, whether an inference of guilt from silence was stressed to the jury, and the extent of other evidence suggesting defendant's guilt." United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991).
cited Cited "see" United States v. Ricky Hitsman
9th Cir. · 2015 · signal: see · confidence high
See United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991).
discussed Cited "see" United States v. Macias-Curiel
9th Cir. · 2009 · signal: see · confidence high
See Ochoa-Sanchez, 676 F.2d at 1286 (noting, in dicta, that “[i]f defendant had invoked his right to remain silent in response to Miranda warnings, questioning that asked why certain information had not been revealed would have been improper.”) However, this is not a case like United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991), where the effect of statements made at trial “was to suggest to the jury that Newman must have been guilty because an innocent person would not have remained silent.” The effect of the statements at Macias’ trial was not to suggest that his silence im…
discussed Cited "see" United States v. Macias-Curiel
9th Cir. · 2009 · signal: see · confidence high
See Ochoa-Sanchez, 676 F.2d at 1286 (noting, in dicta, that “[i]f defendant had invoked his right to remain silent in response to Miranda warnings, questioning that asked why certain information had not been revealed would have been improper.”) However, this is not a case like United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991), where the effect of statements made at trial “was to suggest to the jury that Newman must have been guilty because an innocent person would not have remained silent.” The effect of the statements at Macias’ trial was not to suggest that his silence im…
discussed Cited "see" United States v. Uriel Hernandez, Jr.
9th Cir. · 1997 · signal: see · confidence high
See Branson, 756 F.2d at 754 (finding that because the defendant "succeeded in indicating to the arresting officers he wished to remain silent," he "totally revoked his waiver," and that "[a]ny use of that protected silence is plain error.") The Government's use of a defendant's post-Miranda silence for impeachment "violate[s] the Due Process Clause of the Fourteenth Amendment." United States v. Newman, 943 F.2d 1155, 1157 (9th Cir.1991). 10 In the present case, the Government impermissibly referred to Hernandez's revocation of his Miranda waiver during its direct examination of Special Agent …
discussed Cited "see" State v. Sullivan
Mont. · 1996 · signal: see · confidence high
See Newman, 943 F.2d at 1158 (conviction reversed on Doyle error when all evidence circumstantial); Scarborough v. Arizona (9th Cir.1976), 531 F.2d 959, 962 ( Doyle error found when evidence weak upon which jury could have acquitted).
cited Cited "see" United States v. Gary A. Newman
9th Cir. · 1993 · signal: see · confidence high
See United States v. Newman, 943 F.2d 1155, 1157-58 (9th Cir.1991).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Gary A. NEWMAN, Defendant-Appellant
90-10387.
Court of Appeals for the Ninth Circuit.
Sep 11, 1991.
943 F.2d 1155
Negatu Molla, Snell & Wilmer, Tucson, Ariz., for defendant-appellant., Robert L. Miskell, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.
Choy, Sneed, Kelleher.
Cited by 55 opinions  |  Published
SNEED, Circuit Judge:

Appellant, Gary A. Newman, appeals from his criminal conviction for setting fire to lands within the Coronado National Forest in southern Arizona. He argues that he was prejudiced by testimony regarding his post-arrest silence. We agree and reverse Newman’s conviction.

I.

FACTS AND PROCEEDINGS BELOW

On May 29, 1989, two Forest Service special agents (Boerman and McCormick) began surveillance of fellow employee Gary Newman. They had previously installed an electronic tracking device on defendant’s Forest Service pickup truck. At approximately 9:40 a.m., the agents spotted defendant’s truck travelling north on Highway 83. They followed defendant’s vehicle for approximately two miles on the highway. Agent Boerman then continued the surveillance on foot after the defendant turned off the highway and parked his truck on a “two-track” road. Except for a ten-minute interval during which Boerman returned to his vehicle for radio batteries, the defendant’s truck was continuously in Boerman’s sight for an hour. During this time, Boerman testified that the truck remained empty.

At approximately 10:50 a.m., Boerman saw the defendant return to the truck from the north and drive off. Four minutes[*1156] later, smoke was spotted. Boerman then proceeded to the site of the fire which was located seventy-five yards from the north fence of Black Oak Cemetery, approximately eight minutes by foot from where the defendant’s truck had been parked. Agent McCormick also proceeded to the site of the fire. His testimony was that he heard defendant report the fire over the radio at approximately 11:00 a.m. Other witnesses at the trial appearing on behalf of the defense contradicted McCormick’s testimony.

Upon arriving at the cemetery, Agent McCormick stopped to question Mrs. May Gates who had arrived at the cemetery at approximately 9:45 a.m. that morning to visit her husband’s grave. During the relevant time period she had a clear view of the pasture where the fire started. She heard a man’s voice utter two or three sentences, listened for a reply, but she heard nothing more. During this time, however, Mrs. Gates saw no one at either the cemetery or at or near the fire before McCormick’s arrival.

Defendant arrived at the scene of the fire at approximately 11:10 a.m. When asked by agent McCormick why he had started the fire, defendant denied his involvement. Defendant also declined to give any further statement to the agents; nor did he give a statement to his supervisor. The following day, however, defendant gave a detailed explanation of his movements of the previous morning. In numerous ways, this explanation was inconsistent with the agents’ observations of his movements.

Agent Douglas of the Forest Service investigated the area and determined that the cause of the fire was incendiary in nature. On the day of the fire, defendant had two match books with him in his truck from which some matches were missing. The agents also located a portable radio in defendant’s truck.

On October 18, 1989, a grand jury indicted Newman under 18 U.S.C. § 1855. After a five day trial, a jury found Newman guilty on March 26,1990. He was given an eight month sentence, four months of which were to be served in jail and the remaining four months under “house arrest.” He was also placed on supervised release for three years and ordered to pay restitution of $55,173.

II.

DISCUSSION

A. Defendant’s Post-Arrest Silence

As stated above, Newman denied starting the fire when questioned by Agent McCormick. Thereafter, McCormick read Newman his Miranda rights. Newman told Agent McCormick that he did not want to talk at that point. He indicated that he might give a statement once his supervisor arrived. However, when his supervisor did arrive, Newman again declined to speak to the agents.

At trial, during the prosecution’s direct examination of Agent McCormick, the witness described the sequence of events following defendant’s arrest at the fire scene:

Q: Did you advise him of his rights?
A: I did at that point in time.
Q: And what was decided at that point?
A: Mr. Newman would remain silent. He wished not to make a statement.

Defense counsel objected and requested a curative instruction from the judge. The judge said “Let’s take it to the end of this inquiry and then, if necessary, I'll give an instruction.” Defense counsel accepted this decision. The prosecution continued:

Q: He said that he wanted — he didn’t want to say anything. Did he say that he would be willing to later, though?
A: At that point in time he said he might be willing later to give a statement when his supervisor, Terry Dyess, arrived.
Q: And was his supervisor radioed to come to the location?
A: Yes, just immediately after this point in time.
Q: Okay.

At that point, the court gave a curative instruction telling the jury not to consider[*1157] Newman’s silence “for any purpose whatsoever.” [1]

Questioning continued and the prosecutor asked the witness whether Newman made a statement once his supervisor arrived. Defense counsel again objected and the court overruled the objection. In response to the prosecution’s question, McCormick said: “No statement regarding the events was made. The statement was made by Mr. Newman that he was not to talk to me.” Shortly thereafter, the trial broke for lunch.

After the lunch break, outside of the presence of the jury, defendant moved for a mistrial. The trial judge denied the motion. The court did give a second limiting instruction to the jury when the trial resumed. [2]

B. Analysis

The Supreme Court has clearly stated 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.” Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). The prosecutor in this case, on more than one occasion, unnecessarily elicited testimony from Agent McCormick regarding Newman’s decision to remain silent after his arrest. Newman was clearly entitled to remain silent if he so desired. Nor should this silence be used to suggest guilt. In United States v. Wycoff, 545 F.2d 679 (9th Cir.1976), this court explained the effect of informing the jury that the defendant remained silent. “The natural tendency of the use of the testimony in this manner is to prejudice the defendant by attempting to create an inference of guilt in the jury’s mind.” Id. at 681; see also United States v. Valencia, 773 F.2d 1037, 1040 (9th Cir.1985) (reaffirming that it is constitutional error to admit evidence that a defendant chose to exercise the right to remain silent after arrest). Our review of Agent McCormick’s testimony and the prosecutor’s questions establishes that a Doyle violation occurred in this case.

Our conclusion is not weakened by the Supreme Court’s recent decision in Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). There the prosecutor asked the defendant on cross-examination why he had never told his exculpatory story to the police. Defense counsel objected. The trial judge sustained the objection and the defendant never answered the question. The jury was instructed to disregard the question. The prosecutor made no further references during trial to the defendant’s post-arrest silence. The Court held that Doyle bars the use of a defendant’s post-arrest silence for impeachment purposes. Id. at 763, 107 S.Ct. at 3107. The Court concluded that the prosecutor in Miller was not allowed to undertake impeachment or call attention to Miller’s silence. Id. at 764, 107 S.Ct. at 3108.

The conduct of the prosecutor in this case is much more egregious than that in Miller. The prosecutor here elicited testimony regarding Newman’s decision to remain silent on three occasions. There were[*1158] questions and answers that focused on Newman’s silence. We hold that the prosecutor’s conduct violated Newman’s due process rights under the Fourteenth Amendment.

We now must decide whether the error was harmless beyond a reasonable doubt. Wycoff, 545 F.2d at 682 (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). When deciding whether the prosecutor’s conduct was harmless, we will consider the extent of comments made by the witness, whether an inference of guilt from silence was stressed to the jury, and the extent of other evidence suggesting defendant’s guilt. See Scarborough v. Arizona, 531 F.2d 959, 962 (9th Cir.1976); see also Ahlswede v. Wolff, 720 F.2d 1108, 1110 (9th Cir.1983) (holding Doyle error was harmless in light of overwhelming evidence of defendant’s guilt).

We conclude that the admission of testimony regarding Newman’s post-arrest silence was not harmless beyond a reasonable doubt. The prosecutor elicited several statements from Agent McCormick regarding Newman’s silence. Those comments were extensive and prejudicial. Notwithstanding the instructions from the trial judge, the effect of those statements, intended or otherwise, was to suggest to the jury that Newman must have been guilty because an innocent person would not have remained silent.

Our decision is bolstered by the overall weakness of the government’s case. No one saw Newman start the fire. The evidence of his guilt is all circumstantial. We find that the facts of this case establish that the error in admitting the testimony regarding Newman’s silence was not harmless beyond a reasonable doubt.

In light of our holding that the prosecutor violated Doyle and the due process clause by eliciting testimony about Newman’s post-arrest silence, and because we find that this error was not harmless, we do not reach the other points raised by Newman on appeal. Newman’s conviction is reversed and this case is remanded to the district court.

REVERSED.

1

. The judge gave the following instruction:

The jury is instructed that a person being interrogated by a law enforcement officer, and having been advised of his rights, is not required to say anything. If he decides not to say anything, either at that point or any other point, his decision not to speak, that is, his not saying anything, cannot be used against him or considered against him for any purpose whatsoever.

Reporter's Transcript at 250-51.

2

. The judge said:

Members of the jury, I do want to state to you an important matter for you to keep in mind about the testimony that came in before the lunch break, and that is this: Mr. McCormick testified to a series of conversations with the defendant. If at one or more points the defendant decided not to say anything, whether that was before or after consulting with his supervisor, doesn’t make any difference. You are not to draw any inference whatever against the defendant by reason of that. By the same token, you are not to draw any inference or do any speculating about what may or may not have been said between the defendant and his supervisor. In other words, that occurrence during the series of conversations is not to be considered by you against the defendant for any purpose.

Reporter’s Transcript at 272-73.