United States v. Eric J. Monaghan

Before EDWARDS, WILKEY and Cir- Judges, McGOWAN, cuit Senior Cir- Judge. cuit WILKEY, Judge: Circuit propriety of the jury, remarks to the an issue raised infrequently appeals, question unsuccessfully attempted anal intercourse contends here. impermissible refer- Bart.6 made with not to the witness decision take ences to his appellant for almost stayed stand, attempted to that the Although pair slept to- two weeks. prejudices passions inflame bed, the gether appellant’s record dis- conclude jury. We incidents of mis- closes no further sexual infringe question fifth did spent Sep- They conduct. the weekend of against privilege self-incrimina- amendment appellant friends of at a tember 10-12 with rights; process we therefore tion or due Delaware, they happened where to beach affirm the conviction. from meet two social workers Prince Wil- recog- County.

liam When workers Bart, nized informed them he had he I. parents “gotten out of detention [his] Monaghan charged in Appellant Eric was to the let come for down beach [had] [him] a indictment with various of- six count1 following Tuesday the weekend.”7 On the relating to sexual misconduct with fenses brought home from appellant work a com- Mona- 14-year-old jury Todd Bart. found printout showing Bart’s puter status as a ghan taking guilty of indecent liberties juvenile runaway. appellant’s sugges- At oral-genital committing with a minor2 and tion, Kaufman, telephoned Monedia placed sodomy.3 probation, He on was Appellant probation Bart’s officer. in- conditions, years. for special with three he operated formed Ms. Kaufman that a begins story a chance This sordid with runaways stay- Bart home for and that was Monaghan Bart at between encounter ing there he went to school. while D.C., Washington, early a gay bar days appellant’s Two later Bart left appel- Bart September 1982.4 revealed to subsequently apprehended house. He was runaway juvenile he lant that was from agents boarding Trailways FBI while facility County, in Prince detention William Upon return bus bound for New York. Virginia; appellant to Bart that disclosed County facility, to the Prince William Bart police agreed he was a officer.5 Bart to stay informed Ms. Kaufman of his appellant fifty rent from a room for dollars conveyed week, whereupon appellant. later the informa- ap- the two retired to She pellant’s Capitol agent. tion to an FBI Arrest and federal house Hill. The next performed grand morning appellant jury sex and indictment ensued. oral (1) Transporting appellant guilty a minor the District Count if it found Count within Four engage prostitu- of Columbia with intent to Three. at 48. Record 2423(a)(1) (18 (2) (1982)); U.S.C. § tion trans- Columbia, porting a minor within District of 4. The exact date was never At established. time, old, Maryland engage years although and Delaware with intent Bart was fourteen he (id.); (3) prostitution taking falsely liberties indecent carried card which an identification stat- 22-3501(a) (D.C.Code with a minor ed that § his birthdate was 22 December 1962. Ann. (1981)); (4) enticing money by dancing a minor take tips with intent to earned at the (id 22-3501(b)); (5) com- § indecent liberties bar. sodomy (id 22-3502); mitting oral-genital § (6) using facility interstate in aid of the Appellant was a detective with the Tran- Metro purpose activity transporting a minor for the Washington Department sit Police Metro- (18 1952(a)(3) (1982)). prostitution U.S.C. § politan Authority Area Transit at the time of the The sixth later dis- Record at 1. count was meeting. for failure to state an offense. Id at 39. missed apparently feigned sleep during 6. Bart the en- 22-3501(a) 2. Count Three. See D.C.Code Ann. § counter. transcript 7. Tr. I "Tr. I” refers to the at 186. testimony; jury containing id. trial “Tr. § Count See 22-3502. The IT’ refers to Five. containing closing guilty transcript arguments found Counts One jury disregard court instructed the of counsel. Two. The presided over Numerous decisions of this and oth In the trial Corcoran, courts have the contours of Judge F. er defined District Howard witnesses, right free constitutional from called a number adverse government A court important the most far was comment. must de whom “whether, in of Bart termine the circumstances of Bart. Cross-examination Todd extensive, particular case, making language with defense counsel re- ‘the used was manifestly attempts impugn youth’s intended or was of such peated eharac naturally called credibility.8 The defense two minor ter and neces stand, appellant, sarily take it but not to be a comment on the fail witnesses ” 13 testify.’ of the accused ure II. no offers reason be certain contends that remarks lieving by the in his statement “manifestly ... intended be a com impermissible constituted com- silence, ment” on nor does the ments on his failure to take the witness suggest record such intent. When assess We conclude the remarks were stand. ing the constitutionality ambiguous pros improper. remarks, appellate ecutorial court should not strain to reach the one interpre protects The fifth amendment tation which ascribes motives to compelled right to be from free self-incrimin prosecutor. government The here was corollary right, ation.9 of that essential faced with an In task. unenviable order to exercise, its govern effective that the prevail, it beyond had to establish a reason proceeding may ment a criminal not ad able doubt that sexual misconduct had oc versely comment on an accused’s silence.10 Monaghan curred between and Bart in the difficulty reviewing bedroom, privacy Monaghan’s court without in determining alluding lies whether once Monaghan the fact that strayed beyond permissible the rhetoric has had not taken the witness stand. Under 11 argument” in “the heat of circumstances, into the virtually any these refer constitutionally realm of the illegal infirm. That interpreted ence act could prosecutorial retrospect statement appellant’s as a reflection on silence. But appear ill-advised hypertechnical reading or unfortunate does not prose such of the necessarily render it language unconstitutional.12 cutor’s is neither mandated nor See, Rochan, example, following exchange e.g., For 8. occurred 12. United States 563 F.2d early 1246, (5th (“We Cir.1977) in the cross-examination: approve 1250 do not Bart, language[,] question of this you’re very Q. but the we face per- Mr. not a honest son, you, proper, not whether the remark was sir? wheth- but Why you necessarily interpret er the say A. would do that? it as a [sic], accused.”); Q. people You lie alot comment on the don’t silence of Unit- you, Williams, 950, (D.C.Cir. sir? ed States v. F.2d 521 953 1975) error, A. No. ("Though no we find we are not very Q. You impressed tell vicious lies about what with the conduct in this people sexually, you, do don’t sir? instance____"); Kravitz, United States v. 281 581, Tr. I at 199-200. (3d Cir.1960) ("We F.2d 586 think little of prosecutor____ the words used But we U.S. 9. Const. Amend. V. quite realize ... latitude some must be given lawyers’ language fought in a hard 609, 615, California, See 380 U.S. 85 Griffin cert, case.”), 941, denied, 5 1229, 1233, (1965). 14 L.Ed.2d 106 Such (1961). L.Ed.2d 372 prosecutorial statute, also violate a federal (1982). Griffin, 18 U.S.C. See § 3481 Williams, (quoting 521 F.2d at 953 Knowles U.S. at 612 n. S.Ct. at 1232 n. 4. (10th v. United Cir. 1955)); Rose, see Butler v. 686 F.2d Harris, United States v. banc) 1982) (en (discussing n. 6 Cir. “univer- (D.C.Cir.), test). application” sal of the Eric point that he had sex with Mona- legal standard prevailing under the allowed ghan. com- appellate review establish, Instead, Now, as our decisions you ments. listen to coun- when defense inquiry to the intent there, confine our argue you we must they may sel objective and the indeed, of the were contradictions. But listen effect have had on reason- the remarks would argument carefully. I invite to their Taking the un- juror. And, into account that, able please. you listen for to do case, of this we con- circumstances argument usual part of their that directs likely prosecu- sider it much more any your attention to evidence that defense of intended his remarks to be a tor or seen that Todd have heard contradicts credibility appel- an allusion to Bart’s than that he had sex Eric Mona- lant’s silence. ghan.15 turn, then, prong second

We appellant only person capable If were the test, effect which the statements “natu- contradicting testimony, Bart’s necessarily” have had on rally and would might logically prosecu- have construed the objective jury. This standard appellant’s as an tor’s statement allusion to prosecu- clearly have violated had the been silence.16 But this was not the case. directly failure of tor commented on the While Bart and were the testify. cir- Under such persons present alleged- when sex acts cumstances, might reasonably occurred, ly there were other witnesses construed the comment as an invitation testify as to who could whether sexual assessing consider silence Indeed, place. misconduct in fact took not- most, however, guilt or At innocence. withstanding characteriza- prosecutor’s present statements in the case tion of Bart’s direct evidence as “uncontra- “only reference to constituted an indirect dicted,” testimony there was to the effect appellant’s testify.” failure The likeli- appellant had not had sex with Bart. prejudice correspond- hood that occurred is that, Monedia Kaufman testified in her ingly diminished. first and second conversations with Bart Even indirect comments can have the following his return to the detention facili- proscribed jury, effect on a we but believe ty, youth no made mention of a homo- that in this case The most did not. Monaghan. sexual encounter with In a significant of those remarks was the conversation, subsequent initially de- reference, argument, in closing cutor’s his having appellant; only nied had sex with to the “uncontradicted” character of Todd expressed when Kaufman disbelief did testimony: Bart’s “maybe” Bart concede that he and Mona- So, evidence, in where ladies and ghan Moreover, slept together.17 had in a gentlemen, proof guilt is the in this given statement which he had to the Public proceeding? Service, Defender excerpts and from which

Well, court, gentlemen, ladies and I would were read Bart himself recounted suggest principally telling first and it two of his friends that he had never testimony, appellant.18 comes from the the oral had sex with Defense counsel testimony, Dunning sworn of Todd Bart. relied on testimony both Kaufman’s and His evidence is uncontradicted at this the Public Defender statement for the Williams, added). defendant). Rose, (emphasis at 521 F.2d But Butler v. at cf. (rejecting proposed 1170-71 rule that references always to "uncontradicted” state of evidence are 15. Tr. II at 14. impermissible only per- where defendant is the contradiction). son who could have offered such Mintzes, Raper v. 16. See Cir.1983) (distinguishing evidence "which could 17. Tr. I at 64. conceivably by witness- have been contradicted es other than the defendant” from evidence by the 18. Id. at which could have been contradicted 243-46. vised,” alleged sex acts had but it we conclude that did not proposition pieces of Admittedly, both constitutionally exceed limits of the occurred.19 unconvincing light testimony permissible. were The remarks im appellant; overwhelming against evidence mediately following interruption evidentiary question this was but enough: thing innocuous “One we all jury. The weight properly by resolved know, gentlemen, ladies and is that [Mona significance lies not in its gotten fair, ghan] given has been (or thereof), lack credibility but the fact ultimately Moreover, fair trial__”22 appellant other than that witnesses could prosecutor did point no criticize the principal testimo- and did contradict Bart’s failing impart his knowl edge jury. Taking all these factors ny.20 consideration, into we conclude that proper The statement was statement did not run afoul of fifth had for another reason. Defense counsel amendment. challenged persistently veracity Bart’s cross-examination, up and it was challenges also a remark made credibility defend his prosecutor to prosecutor by during argu- his The star witness. cannot be regard ment in corroboration re- strength off fair on the shut from comment quired testimony Bart, for the a minor. testimony, particularly of its own witness’s The said: relying principally it is on one when wit- a child takes the stand child [W]hen severely ness and that witness has been differently must treated somewhat challenged defense. reasonable you, jury, members of the assessing prosecu- would have realized credibility the truthfulness and the veracity tor’s remark went to Bart’s rather testimony. just child’s It’s one of the than silence. few distinctions that the law makes in Appellant contends that other statements ability of a witness to take the stand impermissible constituted testify; a differentiation between testify, we references to failure to but child, minor, youth, perhaps point conclude otherwise. At one in his Monaghan’s my Mr. or case case Mr. rebuttal, prosecutor pointed appel your Tuttle’s case or case as an adult.23 “[ljadies gentlemen, lant and said one might best have erred on thing for sure. We your don’t know what the of by using side caution someone else’s decision will be until come into back name a illustrating as means of the corrob- give the courtroom and us. it to But one requirement; significant oration but it is

thing, deep his in heart Mr. only that was not the name objection prompt the knows —.”21 juror mentioned. No reasonable prevented prosecutor defense from fin appellant have construed the reference to therefore, ishing his sentence. jury, The as a reflection testify. on his decision “deep what his never learned in heart” the experienced An judge appellant usefully knew. Nor can we trial at heard tempt prosecutor’s prosecutorial in same jury to discern the intent remarks as the making required heard. He was the statement. The sentence was to be more sensi- ambiguous by tive than the rendered virtue of the de members of the to the objection. agree prejudicial We fense counsel’s effect statements government’s might opinion, pros- concession that the re cutor have. In his unnecessary “perhaps mark was and ill-ad transgress ecutor’s remarks here did not Tr. II 19. at 42-44. 21. Id. at 73. reasons, prosecutor’s For similar state- Id. witness," "can be ment that Bart id. impermissible did not constitute an refer- added). (emphasis Id. at 11-12 appellant's silence. ence bring a means to every legitimate see advocacy, and we proper limits of a assessing But in the effect just one.”26 judgment.24 question that reason to no had on a remark would have III. respect must be accorded jury, due jurors’ common sense and discrimination. challenges certain Appellant also Donnelly in Supreme stated in his As the Court made which, ap argument and rebuttal DeChristoforo: contends, designed to arouse

pellant argu- passages of a Isolated jury. We prejudice of passion and ment, in to the as a billed advance statements, though even that conclude evidence, opinion not of do not of matter cause sub improper, did not in some cases proportions reach the same [as “[t]he appellant. prejudice to stantial repeated misrepresenta- and ‘consistent of a dramatic exhibit tion’ evidence”]. prose a established that It is well closing argu- arguments, like all Such calculated make statements cutor counsel, carefully are seldom ments prejudices passions to arouse in toto before the event; im- constructed “may strike hard The jury.25 syntax provisation frequently results blows, liberty to strike he is not at [but] meaning than .imperfect less left duty his to refrain It is as much foul ones. general crystal clear. While these obser- pro calculated to improper from methods way justify prosecutorial it use vations no wrongful as is to a conviction duce flag type had not been raised before requested of a which instruction 24. Defense counsel However, approved case. the standard in the "cure" what it considered to designed precisely type that instruction is Included within comments. where, here, instruction, however, re- personal as there were several rebuke of situation argues vigorously Judge the defendant prosecutor. Cor- marks which See Record at 50. testify. requested on his failure to The correctly instruc- were comments refused the coran Instead, give judge present give case offered to trial in the II at 79. he offered tion. Tr. instruction, and it was refused. that the de- such an instruction which stated standard testify right own had a not to fendant 25. See Viereck United objected to the instruc- behalf. Defense counsel L.Ed. 734 Viereckinvolved ground call to the tion on the that it would for willful omission of wartime jury’s had not attention the fact that registration facts in a statement re- material Judge respected defense testified. Id. Corcoran agents foreign principals. quired give counsel’s decision and did not the standard impassioned appeal made an so, doing complied In he with this instruction. jurors’ patriotism: sense of Williams, suggestion in United States v. court’s (D.C.Cir.1975), trial 955 n. 11 fight This is war. It is a to the death. The judges respect the tactical decisions of defense relying upon you people American are ladies complain counsel. cannot now protection against gentlemen for their give failure to a curative instruction. crime, just as much are this sort of a protection relying upon the of the men who always the defendant is The dilemma of Peninsula, guns every- man the Bataan testify puts him in an awkward his failure to They relying upon where else. ladies jury. perfect position is no cure with the There effect, gentlemen protection. We are for their but this is one of an instruction can duty perform handicaps being at war. You have a here. defendant and not representative your taking As a Government I stand. When a the witness by calling upon every your severely challenged to do am one witness has been defense, opportu- government duty. must have the 3, by logical argu- (quoting nity its witness 318 U.S. at 247 n. 63 S.Ct. at 566 n. 3 to rehabilitate ments, key certainly among being Supreme prosecutor). that on them The Court termed the 248, “highly prejudicial.” points was uncontradicted. the witness Id. at 63 remarks argues perfect They appeal is a for here What S.Ct. at 566. constituted “an whol- dilemma, case, ly any defendant’s but there solution to the irrelevant to facts or issues in the to probably purpose only The instruction on failure is none. and effect of which could have testify there has been no passion prejudice.” is least desirable when been to arouse 247, Id. at which, imagi- by the wildest stretch of comment nation, 63 S.Ct. at 566. interpreted on as a reflection could be States, 78, 88, Berger v. United 295 U.S. 55 Then such an instruc- the defendant’s silence. 633, 629, coming red S.Ct. 79 L.Ed. 1314 would raise a tion from the court

1441 misconduct, suggest jury] fight do that a court in the they effect enlisted [the prosecutor crime,”29 a lightly against thereby diverting not infer that should jury ap- to its ambiguous determining remark from its sole task of intends damaging meaning jury, pellant’s guilt that a most or or innocence. exhortation, through lengthy sitting will urge not jurors meaning plethora that from the draw to a criminal convict defendant order to interpretations.27 damaging less protect community values, preserve civil challenged of the One order, lawbreaking.30 or deter future lay advocacy clearly range within the lurking appeals evil such

permitted prosecutor. In his that the defendant will be convicted for argument, jury asked the guilt wholly reasons irrelevant to his own public proceeding “issue in this a condem persuaded Jurors may or innocence.31 Mr. by appeals that, nation of for behavior by such to believe convict defendant, respect by finding ing they to Todd him a will assist in the guilty public a pressing problem. forum citizens of his solution of some social community guilt a beyond society’s own reason The amelioration of woes is far charges.”28 heavy of the able doubt each five too a burden for the individual crimi Appellant “in contends this statement nal defendant bear. 646-47, 1872-73, 637, 1868, might open 94 416 U.S. S.Ct. evidence ... we as well all the Pate, (1974) (quoting say, get money, 40 L.Ed.2d 431 Miller v. banks 'Come on and 1, 6, 785, 787, boys, 386 U.S. 87 S.Ct. 17 L.Ed.2d 690 because we’ll never be able to convict (1967); Kravitz, ”); 659, Wiley, see also United States v. 281 them.’ United States v. 534 F.2d cert, (3d Cir.1960), denied, (6th Cir.) (prosecutor’s F.2d 941, 364 U.S. 581 665 comment that "if 459, (1961): goes 81 S.Ct. L.Ed.2d 372 5 up this man free have chalked one point for the criminal” bordered on reversible We little words think of the used cert, error), denied, 995, 2209, 425 U.S. 96 S.Ct. they unnecessary We cutor. think in an (1976); 48 L.Ed.2d 819 v. Brown United logical convincing otherwise summation. 242, (D.C.Cir.1966) (condemning 370 F.2d 246 quite But we realize we have said before that, prosecutor’s statement if defendant given lawyers’ that some latitude must be convicted, law”). city “this must have language fought martial say in a hard case. To prejudicial have a remark would effect on appeals jury Some courts have held that to the jury throughout long which had listened community" to act as the "conscience of the are unfolding trial to tois impermissible per se unless de- stupidity attribute and absence of common signed jury. inflame See United v. States jury. which sense is incredible in a federal 1289, (11th Cir.1982), Kopituk, 690 F.2d 1342-43 cert, Id. at 586. denied, 928,--, 461 U.S. 103 2089, 2090, 3542, 300, 300, 77 L.Ed.2d 1391 28. Tr. II 28-29. (1983); Lewis, 1030, United States v. 547 F.2d cert, (8th 1976), denied, 1111, Cir. 1037 429 U.S. for 29. Brief at 30. 1149, (1977); 97 S.Ct. 51 L.Ed.2d 566 United cf. 1076, Shirley, v. States F.2d Cir. See, 299, e.g., Terry, United States v. 702 F.2d 1970) (prosecutor’s increasing reference to the Cir.) (2d (improper to make of car number thefts did not constitute "an regarding "community impact”; statements community impact appeal jurors’ emotional self de- interest by judge instruction harm- signed prejudice against to arouse their de- cert, error), denied, 931, less fendant”); U.S. Alloway, United States v. — -, 77 L.Ed.2d (6th Cir.1968) (prosecutor's reference (1983); United States community,” as "world conscience of the Barlin, (2d Cir.1982) (condemn- 686 F.2d request Alloways "let the John ing prosecutorial appeal something to "do type that this know ated," of conduct will not be toler- drug community”; the error); traffic in our harmless permissible did not exceed bounds Hawkins, United States advocacy). (D.C.Cir.1978)(prosecutor is 754-55 not at liber- innuendo, it, ty equate, directly guilty succintly put one 31. As district court such against drug problem; appeals encourage verdict blow to convict a defend- error), harmless ant "not for what he had done but what (1979); doing.” L.Ed.2d 380 United States other thieves and criminals were Barker, (6th Cir.1977) Estelle, (N.D.Tex. F.Supp. v. (condemning prosecutor’s v. Brown 1978), curiam, you per statement that "if 591 F.2d 1207 Cir. aff'd 1979) guilty can’t find . ... these defendants on this a life law enforcement to live represent jury “con request

But a illegal gentlemen, that’s engaging basically, ladies and accused demn” an infirm, constitutionally so they’re if activity purer is not that Caesar’s wife [sic] preju excite long not calculated as it is good person that and effective to be not mis appeals do passion. Such dice or can’t—they can’t even They endeavor. issues considering social jury into lead things doing the that think about own case. the defendant’s irrelevant gentleman did. “public con is a Every criminal conviction convicted; it in person of the demnation” You can consider the fact that he was and mean society, highly in a visible forms gauging police officer in what was his fashion, has en that the defendant ingful why people of all intention and he should activity. So socially proscribed gaged known better. its commit long nation maintains as this the free trials32 and open criminal ment And, [appellant’s what does conduct] regarding information dissemination say an individual law enforcement results, “public condem stigma of their officer, particularly, his sense of his determi inevitably attend the will nation” responsibility legal and the to the law guilty of the nation that a defendant system?34 charged.33 he is crimes with which concedes, government the reference As the occasions, however, other On ex- appellant something less than an exaggera- advocacy engaged cutor police emplary officer was “irrelevant and rebuttal, implied he that tion. In his So, too, think, unnecessary.” we was the higher stan- appellant be held to a should high- suggestion that be held to a police he because dard behavior er of conduct of his occu- standard because officer: pation.35 years almost seven He was a detective of sought also to elicit alleged in the incident is at the time [sic] sympathy for the victim. rhetorically He say- place. I’m not the indictment took jurors, ever, asked the “how will Todd Bart that fact. ing convict him on the basis of ever find give himself? How will he ever saying you I is when But what am and, least, up the street part life that state, knowledge, his mental his consider gay adults, life when such as Mr. Mon knowlege that he should have [sic] him, aghan, using effect, are putting himself into as—to sat known what he was isfy very beginning. gratification.”36 their own adult from the Because we sexual expect police people officers and all who remark, too, This was improper.37 Court, relying appellant's Newspaper Superior See Globe Co. v. 2613, on the same fact: 32. police may 73 L.Ed.2d 248 457 (1982) as a officer have been relevant status trials); (right of access to criminal Rich- knowledge to the issue of his and intent. Final- Virginia, Newspapers, mond Inc. v. ly, prosecutor mitigated is true it (1980) (same). prejudicial effect of his remarks somewhat stating, "You cannot use the fact that he’s a course, prosecutorial Of statements of 33. police differently and officer to treat him challenged impermissible type if here are might give guilty find him where another designed prejudices pas- are to excite doubt.” Tr. II at 61. citizen the benefit jury. Kopituk, See United States sions believe, however, that these factors were We 1342-43; Lewis, F.2d at United States clearly proper insufficient to render what were We conclude that the F.2d at 1037. improper remarks. This does not mean that improper request product here was not the irrelevant; their rele- such considerations motives. determining vance lies in whether the appellant. substantially prejudiced remarks 60-62, 34. Tr. II at pp. See 1443-1444. infra out, true, government points It is as the 36. Tr. II at 72. appel- counsel first raised the issue of defense occupation. lant’s Tr. II at 55. It also be also contends legitimate government true that the had reasons sought sympathy for Bart when he elicit defense.42 The judge trial steps over took no that a The fact improprieties, correct the but this is advocacy, how fact proper of steps the bounds part attributable to defense counsel’s he ever, necessarily mean that does request failure to curative instructions.43 process rights the of violates due thereby Instead, by him rise to constitu In order to the accused. helped mitigate self the effect of im prosecutori improper proportions, tional proper remarks.44 Finally, the evidence prejudice must cause al remark substantial against appellant overwhelming was to the defendant.38 We conclude that respect to the two counts for which he was such challenged here did cause remarks guilty.45 significant found It is appel prejudice. lant plea raises no of insufficient evidence disputed of issues fact appeal. jury’s The findings factual must be taken appellate An court should consider as established. findings Those clearly determining three factors im whether supported and, indeed, virtually com — proper by remarks pelled by the testimony and evidence ad substantially — prejudiced a defendant’s trial: duced at trial. misconduct, severity the meas misconduct, adopted ures to cure the prosecutor’s remarks here certainty of conviction absent the im beyond went of approved bounds advo Here, proper improper remarks.39 re cacy, the prejudice but they which engen “ marks were ‘minor pro aberrations in a dered was insubstantial or nonexistent. It ” “ longed trial’ rather than ‘cumulative ev highly is unlikely that a new trial would proceeding by idence of a pas dominated result in a different verdict. Under these ”40 prejudice.’ sion and They were con circumstances, reversal of original con closing remarks,41 fined to compelled viction is by neither constitution and, instances, at least in some were made al nor equitable mandate considerations in response to earlier statements justice.46 jurors asked the to consider "whether [Bart] 43. Nor is absence of curative instructions you your- acting self, type person put dispositive. like if See id. at (although 1181-82 im- forbid, situation, proper prosecutorial uncorrected, God in his how remarks went respond they when in a asked courtroom did not prejudice). result substantial judge, jury, people with a with other with a 8, 27-28, know, 44. Tr. II at 61. you don’t to reaccount those kind of [sic] clearly Tr. II at 20. This remark was details.” Módica, (trial 45. See 663 F.2d at 1182 record proper: represented it a defense of credi- Bart’s strongly indicated that would have found appeal sympathy. bility not an guilty improper defendant even without statements). cutorial Modica, States v. Cir.1981), United 38. (2d fourth factor which relevant L.Ed.2d 1284 some is jury ap- cases the extent to which pears weighed to have in a evidence ration- al, dispassionate Here, at 1181. jurors Id. fashion. 39. re- quested certain during items evidence Socony-Vacuum (quoting United States Id. course of their deliberations. Record at 49. It 150, 240, Co., unlikely Oil would have done so had the (1940)). prosecutor's L.Ed. 1129 passions remarks inflamed their Moreover, prejudices. found the offending (prosecutor’s prostitution id. behavior con- 41. See innocent the two summation). charges. at fined Id. ways punishing There are better or deter- (one 42. See id. ring relevant factor extent to which by reversing misconduct than response statements were made in to defense product conviction which was not the of sub- contentions). Defense counsel had prejudice. first raised stantial Trial courts should not hesi- the issue of status as a express law enforce- tate conduct, even, disapproval their Moreover, sym- be, ment officer. if reprimanding need pathetic reference to Bart attorney was made suspending ca, responsible. after exten- See Módi- credibility sive attacks on Bart’s the defense. 1184-85. reached, challenge toor jurors sions have IV. them. remarks consti- None of ap- impermissible comments

tuted contrast, imposed courts have In marked and, cer- testify, while failure to pellant’s not to prosecution obligation a firm on the exaggerated and remarks were tain other in problem by highlighting, exacerbate appellant sub- caused the improper, none not the defendant any way, the decision of is there- prejudice. The conviction stantial Amendment testify. Both the Fifth fore § law, 3481 statutory 18 U.S.C. federal (1982),prohibit comment on the refusal Affirmed. in Supreme explained testify; as the Court EDWARDS, Judge, Circuit HARRY T. 614, 609, 85 California, 380 U.S. v. Griffin dissenting: 1229, 1232, (1965), S.Ct. in this against imposed by the defendant penalty The case “is a such comment prosecution weak. action was at best exercising privi- a constitutional courts fragment- exclusively on the almost relied lege. privilege It cuts down on the ed, impeached repeatedly inconsistent costly____ What the making its assertion prostitute, child testimony of a streetwise infer, help jury may given no from the and known a convicted thief who is also court, may infer thing. is one What it at trial that prostitute admitted liar. The the silence of when the court solemnizes telling anger in his tale he acted out of him against the accused into evidence is to the authorities —be- about the defendant pro- Notwithstanding this quite another.” report- had cause he believed the defendant nouncement, in this case—in which police. At the his whereabouts to the ed credibility complaining witness was of the prosti- of the between the time encounter crucially at issue—the re- so defendant, prostitute tute and jurors the attention of the peatedly drew psychiatric insti- fugitive from either a silence. The result was to the defendant’s Viewed in this tute or a detention center. penalize this defendant for his against setting, of the case the flimsiness choice, constitutionally protected but to do easily discerned. the defendant is penalty surely so in a case which this obviously an testimony Trial focused on jury’s decision-making. Ac- influenced prostitute private encounter between majority’s cordingly, I dissent from the de- defendant, jury necessarily and the and the uphold the defendant’s conviction. cision alleged par- testimony from the looked 5j! sjs !(c 5}: Sj< % context, right In this of a ticipants. to take the witness defendant decline It is well-established Griffin stand, right long guaranteed the Unit- prohibits rule indirect as well as direct com- Constitution, especially fragile; ed States testify. failure ments on defendant’s jury might view the decision to remain held, As this court has “[t]he any either that un- silent as admission directly need not comment on the defend- true, testimony must be contradicted rule, ant’s silence to violate [the ] Griffin something has to hide. that the defendant used, context, long language so as the naturally such that ‘the would one, role, albeit a limited Courts have necessarily take it to be a comment on the assuring through the use of instructions ” 1 testify.’ failure of the accused to When unfairly penalize a that a does beyond the error is not harmless a reason- to remain silent. defendant for a decision doubt, however, Chapman California, v. 386 free able part, jurors are For the most 18, 24, 824, 828, U.S. 87 17 L.Ed.2d they will whatever conclusions to draw silence, (1967), resulting conviction must be and the de- 705 from the defendant’s Hastings, to know what conclu- reversed. See United States has no means fendant Harris, (D.C. (D.C.Cir.1975)), F.2d States v. 1. United Williams, Cir.) 66 L.Ed.2d (quoting United States 499, 510, any one 76 that other than defendant (1983) (“The question prostitute’s could refuted testimo- L.Ed.2d reviewing alleged this: ny court must ask is absent their sexual encounters Nevertheless, allusion to the failure the defendant’s bedroom. proffer to rebut the defense to evidence argument, re- victims, testimony beyond clear of the is it prostitute ferred said, a reasonable doubt “His evidence is uncontradicted guilty?”). returned a verdict of have point this that he had sex Eric Mona- (“Tr.”) (Nov. 3, ghan.” Transcript Trial case, present In of the several al- the 1983) continued, at 14. The leged examples “Now, you when listen to defense counsel points, to comment which defendant there, indeed, argue you to that suffice, might standing alone, to least one were contradictions. But listen to their circuits, Several warrant reversal. other carefully. argument I invite to do courts, and numerous state have ruled that that, And, you please. for part listen testimony that of a Govern- argument your that their directs atten- or “unre- ment is “uncontradicted” witness any tion evidence to have or heard error, futed” constitute at least when it is seen that contradicts Todd Bart that he had only per- clear that is the defendant Monaghan.” Eric sex with Id. might provided missing son who have comment, although contradiction.2 Such Any attorney recognize would this line indirect, sufficiently has been found to be closing argument persuasive. to be It fo- unambiguous necessarily that a jury’s cuses attention on the act of sex take it be a comment on the defendant’s persons, two presence between and on the silence, Harris, see United States v. 627 one, testimony from its absence from cert, 474, (D.C.Cir.), denied, F.2d 476 449 By mentioning other. twice de- 961, 375, 101 U.S. S.Ct. 66 L.Ed.2d 229 context, prosecu- fendant’s name in this (1980), and if require therefore reversal jury’s tor assured that the attention would not harmless. shift defendant. cases cited 2, supra, note paradigmatic; pre- The facts of case make it clear that this strategy cise been scarcely imagine one could a case has found more numerous exemplary of the courts constitute concerns the cited reversible error. one, than present recognize courts a These decisions also involving sodomy repeated for use taking strategy in- cutor’s of this Yet, prostitute, “[ajlmost decent liberties with a even more minor troublesome.3 who is also convicted thief if admit- he had studied and learned [these cases] lessons, ted liar. It cannot seriously wrong asserted all the in the Hastings, (7th (1972); States, 2. See United States v. 660 F.2d 301 285 N.E.2d 646 White v. United Cir.1981), 499, grounds, rev'd on other 461 U.S. (D.C.App.1969); Morgan, 248 A.2d 825 State v. 1974, (1983) (reversing 103 S.Ct. 76 L.Ed.2d 96 (Mo.1969); Hart, 444 S.W.2d 490 v. State 154 appeals court failure to consider whether 310, (1969); Mont. 462 P.2d 885 State v. Sin- harmless); Hess, error was Runnels v. 653 F.2d clair, 525, 49 N.J. 231 A.2d 565 1359, (10th Cir.1981); 1362-63 United States v. cert, (7th Cir.), denied, Buege, 578 F.2d 187 439 880, Flannery, 3. See United v. States 451 F.2d 871, 203, (1978); 99 U.S. (1st Cir.1971) (prosecution 882 used term "un Thurmond, (8th States United v. F.2d 541 774 contradicted” three times to refer witness's cert, denied, 1976), 933, Cir. testimony private defendant); talk with 1556, (1977); L.Ed.2d 51 778 United v. States States, Rodriguez-Sandoval v. United 409 F.2d 880, (1st Flannery, Cir.1971); 451 F.2d 881 Unit- 529, (1st Cir.1969) (prosecution 530-31 re Handman, (7th ed States v. 853 F.2d Cir. peatedly stated that its version of events was 225, 1971); States, Desmond v. United uncontradicted); Johnson, People v. 102 iLL. (1st Cir.1965); Langford United App.3d 57 Ill.Dec. 429 N.E.2d 905 1949), Cir. (1981) (repeated references to uncontradicted (1950); 94 L.Ed. 1355 see impermissibly of case nature focused Still, attention also State (1978) 119 Ariz. 582 P.2d silence). State, (en banc); on defendant’s Rowley v. Ind. particular, Monaghan. In Mr. Mon- referred to repeatedly trial below when ex- Ap- Monaghan name testify.” Brief for referred failure aghan’s legal difference plaining at 20. pellant and that of a child between sure, opinions judicial several To be just He “It’s one of explained, of an adult. refer- prosecutor’s mere that a concluded that the law makes the few distinctions testimony, on its uncontradicted ence to ability of a witness to take stand error, own, not constitute reversible will testify; a differentiation between a comment because such whether minor, child, youth, perhaps Mr. error, How- error.4 or is harmless itself Monaghan’s my case or Mr. Tut- or case taper ever, many the courts instances your an adult.” Tr. tle’s case case as holding narrower one into a far this broad 3, 1983) Similarly, in (Nov. at 11-12. i.e., that adding a so relevant caveat — rebuttal, prosecutor pointed to Mona- contradictory testimony is available long as thing is one ghan and stated that there defendant other from witnesses than “deep in his Mr. knows heart himself, is not reversible such comment ____” object- at 73. Defense counsel Id. simply found But some courts have error.5 ed, interrupting and the prosecutor, the error, without comments are not that these objection. judge sustained the Id. Re- inquiry,6 error was or that further follow, gardless of what was re- guilt.7 light of harmless in the evidence mark, others, surely coupled left with all Monaghan Thus, were the case Mr. against thinking Monaghan that whatever strong one, prosecu- or had the otherwise heart, sharing in his not it. knew he was single only by referring a time tor erred Third, testimony, immediately these few cases the District uncontradieted after against judge cautioned militate reversal. be “a might careful,” 17, making little bit at about id. however, case, we have In the instant might highlight that comments fact believe, enough, easily much I more— Monaghan testify, that failed to both that there was error and establish “by very cutor said that nature of the First, not that it was harmless. offense,” only “can be witness.” prostitute’s Government concedes at 18. Id. testimony Monaghan that he had sex with together, contradicted on cross-examination Taken the offensive comments was aggravated prior gesture Bart’s inconsistent statements. See (Nov. 1, 1983) 225-227, 233, 235, error, 236; negative Tr. initial reinforced the infer- Therefore, Appellee drawn, that Brief for at 26. in ence to be and assured go stating that Bart’s was uncontra- would neither individual comments un- dicted, could have noticed nor remain harmless. prostitute’s testimony meant that Finally, judge the District denied defense testimony. by Monaghan’s refuted proper requests curative counsel’s in-

Second, several re- made structions. Under the circumstances of case, gesture might marks and at least one that exacer- this error nonetheless have judge his comments the uncontradict- rendered had the in- bated been harmless testimony, high- Bart’s thus when jury preferably nature of structed the ed — made, testimony from least at lighting the absence of comments were but at Rochan, Castillo, See, e.g., United States v. 563 F.2d 6. See United States v. Estrada de 549 1246, (5th Cir.1977). 583, (9th Cir.1976). n. 3 1249 F.2d 584 See, Armedo-Sarmiento, e.g., United v. States 187, Buege, United States 7. See v. cert, 785, denied, (2d Cir.1976), 545 F.2d (7th Cir.), (1977); 51 L.Ed.2d 595 Jennings, States v. United States, Cir.1976); A.2d Watts v. United (D.C.1982); Wright v. United 312-13 (D.C.1978). A.2d 584-85 stances, re- I argument end of conclude that the error was not —that harmless,10 Monaghan’s not to and that this case marks on decision testi- should be reversed. fy disregard- must judge given pre-

ed.8 The need have proposed by

cisely the instruction defense agreed give

counsel should have but further

instruction that went than stan-

dard instruction.9 repeated prosecution’s effort to re-

mind the that had not testi- SAINT MARY OF NAZARETH HOSPI- CENTER, al., Appellants places fied in own case his defense well TAL et beyond involving those mere references testimony and, mind, my uncontradicted SCHWEIKER, Secretary Richard S. requires finding of error. Numerous Health and Human Services. recognized courts egregious less error, cases harmful have resulted MOUNT ZION HOSPITAL AND reversal, require opinions per- CENTER, and their MEDICAL suade me the same result should fol- when, here, Particularly low here. as it SCHWEIKER, Richard in his official not at all clear evidence even capacity Secretary of Health and defendant, sufficient to convict the Human Services. where the chief witness is harlot, liar, male thief convicted and known WASHINGTON TOWNSHIP HOSPITAL mood, repeated who varies his tale Washington DISTRICT d/b/a comments on the defendant’s failure to tes- Hospital, Appellant tify especially troubling, danger- They ous. unjustifiably suggest to the SCHWEIKER, Richard in his official complaining witness’s testi- capacity Secretary as of Health and mony, uncontradicted, because is true. Ab- Human Services. strong sent a and immediate curative in- 82-1034, Nos. 82-1047 and 82-1052. struction, such likely inferences are to be drawn. I am therefore left with little Appeals, United States Court of the jury doubt that in this dispropor- case District of Columbia Circuit. tionately prostitute’s credited the testimo- Argued Oct. ny which, recalled, it must be was rife — Aug. Decided apparently with inconsistencies and was of- promise prosecute fered under a not to —as a result of the comments on

Monaghan’s silence. Under such eircum- Bordenkircher, ineffective, 8. See Eberhardt v. alone often see United States v. (6th Cir.1979) (endorsing Handman, use 855; of this 447 F.2d at White v. United instruction); kind States, of curative White United (D.C.App.1969), 248 A.2d and it (D.C.App.1969) A.2d & n. likely pre- is more to exacerbate the defendant’s " (holding judge have ‘[t]he should admon- Accordingly, dicament than to ameliorate it. ished the that the statement was properly believe defense counsel and necessari- it, disregard and to there and then and should ly judge’s declined the offer deliver this in- have instructed them to the law on the sub- struction alone. ” (citation omitted); ject' observing that in some procedure might preju- cases even not cure Hastings, 10. See United States v. dice). (1983); United Handman, (Griffin States v. 447 F.2d at 856 9. The standard instruction informs error harmless because one witness’s testify. right has defendant not to As de- crime, linked defendant argument, fense at oral counsel observed and as and that recognized, reproach”). witness was not "above other courts this instruction

Case Details

Case Name: United States v. Eric J. Monaghan

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 18, 1984

Citation: 741 F.2d 1434

Docket Number: 18-1026

Court Abbreviation: D.C. Cir.