Defendant’s right not violated

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If a defendant criticizes the government during closing for not rebutting his evidence, he can’t complain when the prosecutor says the same about the defense in reply.

Judge David F. Hamilton wrote (PDF) for the 7th Circuit on Dec. 17, “As ill-advised as his comments may have been, the prosecutor appears to have intended only to respond to [defense] counsel’s closing argument that none of his character witnesses had been rebutted.”

Charles Tanner was charged in federal court for his role in a conspiracy to distribute cocaine. The evidence consisted of testimony from lower-level participants, a full confession by Tanner, and a sting in which Tanner purchased 15 kilograms of simulated cocaine at the direction of law enforcement.

Tanner’s defense consisted of calling many character witnesses.

Tanner was convicted and sentenced to life imprisonment. He appealed, raising numerous issues, but the 7th Circuit affirmed.

Right not to testify

Tanner first argued that the prosecutor’s remarks that he failed to rebut the evidence infringed on his right to remain silent, and the district court should have granted a mistral sua sponte, but the court disagreed.

The court quoted at length from both Tanner’s attorney’s closing argument, and the government’s rebuttal argument. Tanner’s attorney repeatedly said that the government failed to rebut the character evidence he presented.

Responding in rebuttal, the prosecutor repeatedly remarked that the facts indicating guilt were unrebutted by Tanner.

At one point, Tanner’s counsel said these comments came “dangerously close to a certain area of law,” but did not formally object. At that point, the court reminded the jury that the defendant does not have to prove anything.

On numerous other occasions, Tanner’s counsel formally objected to the remarks, but the objections were denied. Counsel never moved for a mistrial because of the comments.

On appeal, Tanner argued that the remarks would have been understood by the jury as a comment on his decision not to testify.

But the court noted that such remarks only infringe on the right not to testify if the defendant is the only possible witness who could rebut the evidence.

Here, the court found that, because Tanner was part of a large conspiracy, there were numerous co-conspirators who could have testified on his behalf to rebut the government’s case.

The court also found that, even though Tanner was the only possible witness who could contradict the officers’ testimony that he confessed to the crime, he could have rebutted the confession by calling witnesses to undermine the substance of the confession.

Because it found that the prosecutor’s remarks did not infringe on Tanner’s right to remain silent, the court held it could not be plain error for the district court not to have declared a mistrial.

Firearm possession

However, the court did agree with Tanner that it was error to admit evidence that he attended a New Year’s Eve party, at which numerous partygoers fired guns in the air to celebrate the new year.

Although evidence of firearm possession is frequently admissible in drug cases, because drug dealers frequently carry weapons, the court concluded, “the mere fact that Tanner fired a gun of unknown ownership, not during a drug deal but at a party celebrating the new year, carries extremely little if any probative value for the allegation that he was the ringleader of a multi-state conspiracy to distribute cocaine.”

But, the court found that admission of the evidence was harmless error.

Marijuana use

Tanner also argued on appeal that it was error to allow a co-conspirator to testify that marijuana was smoked by him and others at a meeting of conspirators that included Tanner.

Reviewing for plain error, because Tanner failed to object at trial, the court held the testimony was admissible, because the only bad acts were those of the witness, rather than Tanner.

Because the witness did not testify that Tanner himself had smoked marijuana at the meeting, the court held the testimony could not be inadmissible propensity evidence under Rule 404(b).

Finding no error with several other evidentiary rulings, or the life sentence, the court affirmed.

Case analysis

Although the defendant lost the appeal, the opinion can be useful to defense attorneys.

First, it illustrates the dangers of failing to make formal objections and motions for mistrial.

By saying that the prosecutor’s comments came “dangerously close to a certain area of law,” the defense attorney was apparently trying to object that the prosecutor was violating his client’s right not to testify, without drawing the jury’s attention to the fact that his client had exercised his right not to testify.

The district judge clearly understood that, as shown by his reminder to the jury that the defendant does not have to prove anything.

But the 7th Circuit’s discussion suggests that, absent a formal objection based on a specific legal basis, the defense attorney’s statements are a nullity.

The court also emphasized that Tanner’s counsel never requested a mistrial, and thus, review can only be for plain error. To do otherwise, the court concluded, would blur the lines between an objection and a mistrial, “which indicates not only that an error may have occurred but that the defendant believes that error to be so severe as to require the impanelment of a new jury for a new trial.”

In practice, this reasoning ignores the obvious – if the district overrules an objection to evidence because it finds no error in the first place, it will be patently futile for the defense to request a mistrial based on the asserted error.

Nevertheless, the opinion makes clear that defense attorneys need to make formal objections, and formal motions for mistrials, when appropriate. Subtle hints cannot constitute objections, even if the trial judge understands them as such; and patent futility is no excuse for not moving for a mistrial.

Second, the opinion suggests it is dangerous for defense counsel to call attention to the prosecution’s failure to rebut the defense.

The court noted, “We review such allegations of prosecutorial misconduct not in a vacuum, but in the larger context of the parties’ closing arguments and the trial itself.” It then proceeded to document how many times Tanner’s counsel used the word, “unrebutted.”

Without specifically saying so, the court suggests that Tanner’s attorney opened the door to the prosecution’s statements by calling the defense unrebutted so many times.

Third, the court’s opinion makes clear that the fact that the defendant fired a gun to celebrate the new year will generally be inadmissible.

Gunfire at midnight on New Year’s Eve is unfortunately common. But as the 7th Circuit correctly found, it is highly prejudicial and not relevant, unless it has something directly to do with the case.

Finally, the court’s analysis of the marijuana use may be correct under Rule 404(b), but defense attorneys can and should still argue that such evidence is inadmissible for lack of relevance.

Unlike firing a gun to celebrate the new year, simply being present while others are smoking marijuana is not something that will be highly prejudicial. But it could prejudice some jurors, and given its total lack of evidentiary value, defense attorneys should argue it is inadmissible, notwithstanding the court’s discussion of other acts under Rule 404(b).

What the court held

Case: U.S. v. Tanner, No. 09-2370

Issues: Is a new trial required because the prosecutor repeatedly remarked on the defendant’s failure to rebut the evidence?

Holdings: No. Where the defendant repeatedly remarked on the government’s failure to rebut his defense, the remarks are not an impermissible comment on the defendant’s decision not to testify.