09-2370, U.S. v. Tanner

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Criminal Procedure
Privilege against self-incrimination; improper closing

The trial court correctly denied defendant’s mistrial motion based upon the argument that the government infringed his Fifth Amendment right to remain silent when the prosecutor commented in closing arguments that defendant failed to rebut the government’s case, because a number of individuals other than defendant could have been in a position to rebut the government’s case.

The prosecutor never commented directly on Tanner’s exercise of his right to remain silent. Absent such direct comment, the right against self-incrimination is violated only when: 1) it was the prosecutor’s manifest intention to refer to the defendant’s silence, or, 2) the remark was of such a character that the jury would “naturally and necessarily” take it to be a comment on the defendant’s silence.

It is a closer issue whether the jury would have “naturally and necessarily” understood the prosecutor’s statements as comments on Tanner’s failure to testify.

“Under this demanding standard, we conclude that the jury would not necessarily have believed that the prosecutor was commenting on Tanner’s failure to testify. Tanner was accused of having sold drugs not on his own, but as part of a large conspiracy. The possibility that even one of his alleged co-conspirators might have testified on his behalf is enough to dispel any constitutional concerns. [Citations.] A jury need not speculate about the possibility of third-party testimony on a defendant’s behalf when, as here, the defendant is accused of conspiring with a large number of people, any of whom could have testified in his defense and rebutted the government’s evidence. Cf. United States ex rel. Adkins v. Greer, 791 F.2d 590, 598 (7th Cir. 1986) (finding no error where it was ‘not hard to imagine’ that others could know of the defendant’s illegal acts). Furthermore, Tanner’s girlfriend was with him when he was arrested and, at the very least, could have testified on Tanner’s behalf regarding the events leading to his arrest. See United States v. McClellan, 165 F.3d 535, 548 (7th Cir. 1999) (finding no error because defendant’s girlfriend, who was with defendant at time of his arrest, could have testified). Of course it is possible, even likely, that neither Tanner’s co-conspirators nor his girlfriend were actually willing and able to testify on Tanner’s behalf, but it matters for our analysis only whether it is particularly likely that ‘the defendant was the only person who could rebut the evidence’ referred to by the prosecution in its closing. Adkins, 791 F.2d at 598 (emphasis in original). On this record, a number of individuals other than Tanner could have rebutted the government’s case, if in fact there had been a factual basis for rebutting it.”

None of Tanner’s other arguments warrant reversal. Except for certain testimony regarding Tanner’s possession of a firearm on one occasion, all of the complained-of evidence was clearly admissible. The one exception was harmless. As for the jury instructions, the district court’s only error was in giving an “ostrich” instruction lacking sufficient factual support in the trial record. That error was also harmless. The district court properly calculated Tanner’s sentence, and a life sentence was reasonable under these circumstances.
Affirmed.

09-2370, U.S. v. Tanner,

Northern District of Indiana, Hammond Division, Lozano, J. Hamilton, J.

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