United States v. Gillman Long
721 F.3d 920
8th Cir.2013Background
- Gillman Roddy Long lived with his girlfriend and her niece A.P. on the Pine Ridge Reservation; A.P. alleged 40–50 sexual assaults from January–April 2008.
- FBI Special Agent Sherry Rice interviewed Long twice in 2009; each time she told him he was not under arrest, the interviews were voluntary, and he could stop/leave at any time.
- During the June 11 interview, after being asked about sexual contact with A.P., Long said, “I do not want to incriminate myself. I would like to stop talking.” The interview ended.
- Agent Rice testified about Long’s statement at trial; the prosecutor later referenced it in rebuttal and contrasted it with the court’s instruction that the jury must not consider Long’s choosing not to testify.
- Long was convicted of two counts of aggravated sexual abuse and sentenced to life. He moved (out of time) for a new trial claiming Fifth Amendment violation and ineffective assistance; the district court denied relief and Long appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of pre‑arrest, pre‑Miranda statement (“I don’t want to incriminate myself”) in government’s case‑in‑chief | Long: statement invoked Fifth Amendment privilege and was improperly used as evidence of guilt | Government: noncustodial, voluntary interview meant no government‑imposed compulsion; such selective silence after voluntary self‑exculpation is permissible | Court: Even if admission were error, not "clear or obvious" under current law (plain‑error standard); affirmed conviction |
| Prosecutor’s closing comment referencing defendant’s choice not to testify | Long: comment treated Long’s silence at trial as evidence of guilt, violating Griffin | Government: comment merely reiterated the court’s instruction and contrasted trial silence with the pretrial statement; not meant to penalize decision not to testify | Court: No plain error; context did not treat trial silence as substantive evidence; affirmed |
| Ineffective assistance of counsel for failing to object / cross‑examine / move for new trial on these grounds | Long: counsel erred by not objecting to statement, by revisiting it on cross‑examination, and by not timely moving for new trial | Government: record does not show deficient performance or prejudice; claim better raised on collateral review | Court: Declined to resolve ineffective assistance on direct appeal because the record is undeveloped; such claims are more appropriate for §2255 post‑conviction review |
| Standard of review applicable to preserved/unpreserved objections | Long: seeks reversal on constitutional grounds despite no contemporaneous objection | Government: plain‑error review applies to unpreserved claims | Court: Applied plain‑error review and found no reversible error |
Key Cases Cited
- United States v. Frazier, 408 F.3d 1102 (8th Cir. 2005) (post‑arrest, pre‑Miranda silence in government’s case‑in‑chief did not violate Fifth Amendment where no government‑imposed compulsion)
- United States v. Davenport, 929 F.2d 1169 (7th Cir. 1991) (privilege not a license for selective self‑exculpation; once defendant speaks voluntarily, subsequent silence or refusal is fair game)
- United States v. Jumper, 497 F.3d 699 (7th Cir. 2007) (discussion of Davenport and limits on using post‑questioning silence)
- United States v. Shoff, 151 F.3d 889 (8th Cir. 1998) (acknowledging Davenport reasoning)
- United States v. Poitra, 648 F.3d 884 (8th Cir. 2011) (plain‑error review framework explained)
- Griffin v. California, 380 U.S. 609 (1965) (prosecution comment on defendant’s silence at trial forbidden)
- Lakeside v. Oregon, 435 U.S. 333 (1978) (court instruction that silence cannot be used does not violate Fifth Amendment)
- United States v. Robinson, 485 U.S. 25 (1988) (context matters; prosecution cannot treat trial silence as substantive evidence of guilt)