United States v. Harvey Wing

986 аnd state entanglement of church facts, spe cessive which these

seated. Under University’s of a cleric selection underlying virtue of the concerns cial absent, cleric that his or her the dis instruction to the in Lee are or its decision Court’s unifying uplifting. that Lee correctly be determined remarks should court trict challenged practices any of advancement reli- require the Insofar as there is does not Vincent, 454 entanglement, v. it is de governmental down. Cf. Widmar gion struck or 14, 269, 14, 276 n. Leininger, U.S. Metzl v. at best. See minimis (1981) (“Univеrsity students Cir.1995) (observing 70 L.Ed.2d F.3d * * * younger than impressionable are less may religion neverthe- promotes “a law * * * appreciate, be able and should students the effect upheld because less be neutrali University’s policy is one of worry religion attenuated to promoting is too ty religion.”). about”). Kurtzman, Lemon Judgment affirmed. reli principal plaintiffs’ other is Rhode Island Pennsylvania and There

ance. church-related edu gave financial aid to

each institutions, cry from the non a far

cational and benediction invocation

denominational Bloomington commencement. University’s of hav practice

Here the com at its

ing and benediction an invocation yeаrs and prevailed for 155 America, has mencements STATES UNITED throughout the nation. Rather widespread is Plaintiff-Appellee, of the Establishment being a violation than acknowledg Clause, “simply is tolerable WING, Defendant-Appellant. among people Harvey widely held of beliefs

ment Chambers, country.” Marsh of this No. 96-1868. 3330, 3336, As we held Sher Appeals, Court of Community Consolidated School man v. Circuit. Seventh (7th Cir.1992), Illi F.2d 437 District Argued Dec. Pledge of public lead the nois schools God, including Allegiance, its reference 16, 1997. Decided Jan. violаting Establishment Clause without here, Similarly the First Amendment. legitimate serve invocation and benediction solemnizing public occa purposes of

secular approving particular reli rather than

sions Donnelly,

gious Lynch v. beliefs. 1355, 1369-70, 79 L.Ed.2d ‍‌‌‌‌​‌​‌‌​‌​​​‌​​‌‌‌‌​​‌‌‌​​​‌‌​‌‌​‌​‌‌​‌‌​​‌​‌‌‍(1984) (O’Connor, J., concurring). As the summarized,

concurring opinion in Sherman was not intended to

“the First Amendment university] from sanc

prohibit [here states

tioning invocations of God. Such ceremonial * * * simply does not amount to action 448). (980 religion” F.2d

establishment correctly deter-

Finally, as the district court

mined, University’s of a brief inclusion and benediction

non-sectarian invocation endorsing primary effect of

does not have a no ex- disapproving religion, and there is (ar- Bach,

Daniel P. Klemp Rita Marie gued), Attorney, Office the United States WI, Madison, plaintiff-appellee. for Mandell, (argued), David L. Rick B. Meier Mandell, WI, Madison, Ginsberg Meier, & defendant-appellant. FLAUM, ESCHBACH, Before KANNE, Judges. Circuit FLAUM, Judge. Circuit January On a federal convict- Harvey Wing, along ed with co-defendant Hicks, Joey of arson in violation of 18 U.S.C. § The evidence indicated that 844C0.1 ignited had hired Hicks to start the fire that August apartment in an on owned by Wing Portage, his and located above Wis- restaurant, Harvey’s.” consin “Mr. Near 844(i) part, personal property § In relevant makes a crime real or used in interstate other “maliciously any activity аffecting damagef] destroy[], foreign or ... or commerce or in explosive, any building foreign means of fire or an ... or commerce...." interstate were have been instructed trial, prose- should four-day during the close nexus be- find a “substantial” required to district court argument, the rebuttal cution’s property and the interstate apparent- tween commerce Wing, with who judge patience lost that nei- damaged in the fire. We conclude body meaningful directing some ly had been ground Wing’s arguments provides ther of following jury. The toward the language of his conviction. court, for reversal among Wing, place exchange took his trial counsel: Wing, I am not sure THE COURT: Mr. I. it, making you are you but are aware claim, the respect to the With have been your head and gestures with disagree over our standard review. parties argu- continuously Mr. Bach’s throughout object trial to the until after Wing did testify permitted to in are not ment. You taken that he “could have court’s observation you understand that? Do that matter. testify. The had wished to thе stand” he Yep. MR. WING: urges therefore us review government you wanted THE COURT: If plain error. Fed. See court’s comments you taken the stand. could have 52(b). Wing that trial concedes R.Crim.P. you. MR. WING: Thank object contemporaneously, did not counsel cannot sit there ‍‌‌‌‌​‌​‌‌​‌​​​‌​​‌‌‌‌​​‌‌‌​​​‌‌​‌‌​‌​‌‌​‌‌​​‌​‌‌‍and THE You COURT: so would have argues that to have done but your and talk in head nod and shake by drawing jury’s compounded the harm jury. with the manner inappropriate re to the court’s attention situation, realities of the right. All marks. Given the MR. WING: post-trial motion suggests, the he jury shоuld under- THE COURT: object. light of In opportunity first expressions any gestures or stand position, Wing asks us delicate trial counsel’s Wing’s face are on Mr. some- whatever government to order a new trial unless they consider when thing that cannot the court’s error was can establish in this deliberating the verdict case. are on beyond a reasonable doubt. See harmless I Counsel]: [Defense MR. MANDELL Chapman California, 386 U.S. apply Special Agent that also would ask 824, 828, 17 L.Ed.2d 705 S.Ct. I have government witness]. [a Kelm closing throughout ar- catching him been post-trial agree that We cannot laughing, He has been gument and trial. object opportunity to was first motion way through various wit- gesturing, all the improvident If the to the court’s comments. ways. go I think it should both nesses. Wing now prejudicial as were as remarks watching I THE have been COURT: claims, upon trial coun his it was incumbent him, anything I I not seen too. have objection on the record make his sel to long as we thought inappropriate. As was Moreover, transgression. time of the court’s you like not to nod spеaking, are would transcript the trial a review of belies your as well. or shake head opportu had no earlier assertion counsel object, otherwise counsel did not Defense fact, object. reaction to nity counsel’s closing prosecutor resumed his re- and the quietly and was not to sit the court’s remarks marks. forgotten would be hope that rebuke events, rather to extend verdict, rush of a motion the Following the filed similarly by asking the court to interruption raised the two for a new trial which he To have government witness. admonish a presses ap- on points of error that he now objection prompt would there first, interposed a peal. argues, district He delay, nor no additional above-quoted fore have caused ex- in the course of more attention to it have drawn rights would change, his Fifth Amendment violated addition, the tran court’s statement. California, under Griffin a there was court-im script indicates by imper- S.Ct. L.Ed.2d prosecu of the the end posed pause between commenting upon his decision not to missibly the commencement Second, tion’s rebuttal and contends that he jury charge.2 provided yet preme This brief hiatus Court waded into this area in United object. If opportunity Young for counsel to plain- another States to caution that “the necessary, requested have counsel could exception contemporaneous-ob error to the prevent in order to jection side-bar conference sparingly, solely rule is to be ‘used jury. the issue before the Be- discussion of those cases in which a miscarriage justice ” ample opportu- cause counsel had more than 1, 15, 105 would otherwise result.’ 470 U.S. nity objection known to the court to make his (1985) 84 L.Ed.2d 1 (quoting trial, during promptly could when Frady, United States v. error, any regard must have cured his 1584, 1592 14, n. 71 L.Ed.2d 816 preserve failure to do so as a (1982)). Subsequently, the empha Court has consequently appeal. issue for will va- plain-error sized doctrine looks not judgment only cate the of conviction if the gravity alleged error but plain сourt’s remarks constituted error. also to whether the prej defendant has been udiced as a result of the error: “[The error] Quite apart from our standard of re must have affected the outcome of the Dis view, express we do not hesitate to our con proceedings.” trict Court United States v. remarks, district court’s cern over the which Olano, 507 U.S. 113 S.Ct. exaspera in were uttered a state of evident 1778, 123 L.Ed.2d 508 Perhaps most judge’s tion. The district frustration with significant, Chapman’s unlike harmless er Wing was understandable. Yet neither the standard, ror government under which the empathy appellate judges who have must establish that the claimed error was judges, respect once been trial nor their for a beyond doubt, harmless a reasonable Rule colleague, learned and most able should deter 52(b) places upon the defendant the burden exercising duty pass upon their them from to demonstrating 734-35, prejudice. propriety proceedings below. Wing S.Ct. at 1777-78. therefore could bar, preferred at case course would have only appeal succeed on this if he could estab to to been have called counsel the bench and lish both that the district court’s remarks to him to have instructed curb his Ghent’s rights violated his under the Fifth Amend judge obliged excesses. If the felt to ad they prejudiced him, ment and that in the Wing directly, dress it was to sufficient warn they likely sense altered the outcome of stop gesturing him to and to instruct the trial. his disregard body English. it should his availability The of these lesser alternatives— Whether the court’s comments did in faсt reminding Wing short of that he “could have Griffin, violate as the Court has taken the un underscores the stand” — interpreted opinion subsequent in deci- fortunate nature of the trial court’s com sions, question Wing appears is a closer than ments. did, Wing to believe. assumes that and proceeds

Whether these comments by amounted to offer a framework which we plain to error under Federal Rule of Crimi to are decide whether the remarks were 52(b) ques beyond nal is a Procedure more difficult a harmless reаsonable doubt. His however, tion. Plain error has an largely unhelpful, remained elusive discussion is be- cause, concept years, indicated, parame over the but certain for reasons we have emerge ters do from harmless-beyond-a-reasonable-doubt the caselaw. This court stan- frequently context; appropriate has characterized error as dard is not in this grave standard, error so that it results in a “miscar if even it were the correct the case justice.” riage us, Wells, Sеe United States v. Wal to which he refers Lent v. 861 F.2d demer, (7th (6th Cir.), Cir.1988), 50 F.3d cert. is concerned with the — denied, -, proper evaluating 115 S.Ct. test references indirect (1995); Toney, L.Ed.2d 845 testify. Adding United States v. to an accused’s failure to to Cir.1994). confusion, government, respon- The this in Su- its prosecutor 2. When the had concluded his re- minute before I start the instructions. It won’t marks, jury: the court addressed the "Ladies and long you sitting take have been a while.” gentlemen, suggest up we stand and stretch for ” guilt.’ silence is evidence of de- such brief, unproductive ‍‌‌‌‌​‌​‌‌​‌​​​‌​​‌‌‌‌​​‌‌‌​​​‌‌​‌‌​‌​‌‌​‌‌​​‌​‌‌‍invites а rather sive Lakeside, 338-39, court’s com- at 98 S.Ct. at the district over whether bate “indirect” Griffin, an (citing in this case constituted 380 U.S. at ments Wing’s failure to 1233). to recently, reference in or a “direct” More say “unproductive,” because testify. Robinson, district direct as the imagine little so can case the Court examined a have “could observation court’s prosecution responded to de in which the had he wished the stand” taken government counsel’s claim that fense comments is of the court’s But the directness opportunity provided Robinson had not by ap- this issue not the central story. held explain The Court his side peal. response, that Robinson prosecutor’s inquiry explained is whether more relevant have taken the stand “could embody evil to which rights you,” court’s remarks did not violate Robinson’s itself: the invitation addressed Fifth Amendment. Id. under the Griffin decision not to guilt from a defendant’s infer position “any ‘direct’ at 866. The can Although the stand.3 take failure of prosecutor to the reference any reference to prohibit direct read to the Fifth violates the defendant ” testify, have at and we failure defendant’s was, as construed Amendment see, effect, e.g., to that times cited it dicta view, Fifth “inconsistent with the the Court’s 487, Cotnam, F.3d 497 Amendment, against compul protects which — denied, -, (7th Cir.), U.S. cert. 31-32, sory self-incrimination.” 326, (1996); United S.Ct. Consequently, broad dic “[t]he at 868. (7th F.2d v. Goodapple, 958 States Fifth to the effect that the ta in Griffin years Cir.1992), in Supreme Court recent the by the ... comment Amendment ‘forbids reading adopt a broad has to such declined silencе,’ must be prosecution on the accused’s Oregon, In Lakeside Griffin. that case.” light in the of the facts of taken 1091, the 55 L.Ed.2d 98 S.Ct. (internal 33-34, cita at 108 S.Ct. at 870 Id. the trial rejected the contention that Court omitted). tions when it deliv the Constitution court violated factually and Lakeside are Both Robinson objection, instruction ered, an over defense present distinguishable from the case. jury an adverse cautioning the not to draw Lakeside, the instruction that “a defendant decision not from the defendant’s inference stand,” 435 oрtion to take the witness has the explained, was testify.4 Griffin, the Court to in at was uttered comment, only with adverse “concerned not to breath as the admonition the same by prosecutor or the trial whether the In Robin- guilt from failure to do' so. infer by prosecution on the judge —‘comment son, that the accused “could the observation by accused’s silence instructions prose- the stand” came from the by the court have taken silence or instructions that such exercising penalizing his or her the defendаnt for typically 3. more confront cases in which We pro prosecution attempted testify. has to skirt a for right to It would be mistake Griffin's by making indirect reference to an ac today’s hibition interpret prosecutors, or trial courts to silence, by arguing example, that the cused’s undermining holding any way this line of as in “uncontradicted” or “unrebutted.” evidence is cases. Cotnam, 88 F.3d See United States v. denied, -, (7th Cir.), cert. - U.S. noteworthy in the instruction at issue It is Lane, (1996); 136 L.Ed.2d 240 Freeman v. jury began by reminding Lakeside (7th Cir.1992); 1260-61 F.2d testify: right to defendant did have the Lane, 664-65 Williams v. 826 F.2d Cir.1987); O’Leary, Dortch see also has the State a defendant Under the laws of this (7th Cir.1988) (involving prosecu 1343-44 testify to in his option take witness stand to tor’s direct comments on defendant's testify). a defendant chooses not own behalf. If or her cases, recognized we have those gives infer- testify, rise no such a circumstance such references amount to an unconstitutional defendant, against presumption ence or testify. accused’s failure to comment on the by you in determin- not be considered this must indirect, labeled direct or the allusion Whether ing guilt question of or innocence. such cases violates defendant's silence in at 1092. by inviting and thus an adverse inference eution, indicted, a not rather than answered was unreliable and inconsistent arguably counsel that mer- Next, claim defense with other evidence at trial. response Wing’s stronger than did suggests ited he that the disclosure that Hicks’s empha- wife, But body language Hicks, this case. Christine had an “extramarital jurisprudence sis Court’s brother, Cavanaugh’s rendezvous” with casts upon prohibited guilt inference of as the upon impartiality doubt her and therefore underlying upon casts doubt rationale upon testimony linking Wing her with Hicks. court Wing’s claim that the district violated Finally, Wing govern- observes that rights mean- his Fifth Amendment within the proposed Wing’s ment’s financial motive— ing of that case. questionable light difficulties —is fact all of his debts were secured. Yet definitively ques- need not resolve this supposed government’s chinks in the ar- tion, however, because, turning preju- to the appear rеlatively insignificant mor when one component inquiry, dice our error essentially considers the evidence corroborat- Wing has failed to conclude convince us ing Cavanaugh’s version of events. For ex- district court’s remarks were suffi- ample, telephone records indicating that two ciently prejudicial to warrant reversal. Inde- placed calls were from the restaurant question, pendent of the constitutional Hicks’s residence between the time of the the district nature and contеxt of court’s attempt unsuccessful arson and the actual suggest prejudice. remarks do not support Cavanaugh’s fire testimony to the court did not ask the to draw an adverse effect that Hicks received a call from inference from failure Moreover, building owner of logical interpret exhorting him while it is often to com- plete job. Moreover, Wing’s argument to a decision not to reference defendant’s guilt, in the that he had no motive to as invitation to infer commit the crime setting secured,” of this case it was that the court because “all of his debts clear were en- merely abling away intended to rebuke for his be- him to “walk[] from the busi- arson,” emphasize havior and to that his nonverbal ness without unpersuasive resort to is regarded light that, communications were not as of evidence in addition to four to. testimony. mortgages Because the immediate reason damaged on the property, Wing evident, jury for court’s rebuke was outstanding personal had utility debts and likely logical leap bills, was nоt to take the that and owed back taxes to the and the IRS prevent.5 seeks to City Portage. short, when we consider weight government’s of the case and the addition, against Wing the evidence was remarks, context of the court’s we conclude government’s theory substantial. The remarks, ill-considered, though that those did Wing case was that hired Hicks to set fire to plain not constitute error. building containing Wing’s restaurant apartment, and that Hicks had enlisted the Cavanaugh, assistance of Fred who was a II.

juvenile аt time of the crime and who ultimately government, Wing argues testified for the and next that the district Cavanaugh jury that Hicks and regarding juris had returned to court’s instruction building 844(i) to § commit the arson after an dictional element of 18 U.S.C. was attempt night prior charge unsuccessful on the to explained erroneous. The court’s to fire. In an preju- jury required effort to demonstrate that govern the statute dice, Wing points prove property now to certain weaknesses ment to “that the real was first, government’s argues, in the activity affecting case. He used in an interstate comm testimony however, Cavanaugh, Wing, who was erce.”6 would have had Dortch, government points 5. The out that the district cure constitutional errors.” jury court recited the usual instruction 1344 n. 4. should not consider the defendants' decision not weight We ascribe little to this factor: 6. The instruction went on to define interstate repeatedly type "This court has held that this commerce: "The term interstate commerce travel, trade, traffic, commerce, sufficiеnt' 'ordinarily transpor- instruction is not means reasons, the order of the foregoing “substantially” be For the word insert the is denying Wing a new trial court district “affecting.” The court “activity” and tween au on the AFFIRMED. proposed instruction rejected his Martin, 63 F.3d thority of United States ESCHBACH, dissenting. Judge, Circuit (7th Cir.1995), in which this Wing’s majority rejects of inter claim “that the winds recognizing The though Al- no error. by holding there was jurisprudence have commerce state issue,” resolving “definitively though not States v. of United in the wake shifted” — express its great length to goes to -, it also Lopez, 844(i) there was constitution- as to whether § “doubt” reaffirmed L.Ed.2d unnecessary, is at all. This dicta al error connection de minimis requires the doubt unwarranted. Martin, 63 F.3d at commerce. See interstate appears Martin concedes principle recognizes This circuit control, reconsider requests “[djirect on a defendant’s comment though Mar light Lopez Martin by Fifth Amend testify is forbidden — even Lopez considered after decided tin was Cotnam, 88 F.3d States v. ment.” United Lopez’s effect. (7th Cir.1996); see also United 1402, 1405 Gоodapple, F.2d

States Cir.1992) (“A the defen comment on direct the issue we to revisit decline clearly a fifth is dant’s failure to do we inclined in Martin. Were decided violation.”). True, principle this amendment occa so, present Wing’s appeal would the court cannot exception, and is not without dual- In contradistinction sion. violation without examin find a constitutional a residential which housed purpose property, States v. ing facts of the case. United enterprise, we a commerciаl apartment and 25, 32-33, Robinson, apartment with ‍‌‌‌‌​‌​‌‌​‌​​​‌​​‌‌‌‌​​‌‌‌​​​‌‌​‌‌​‌​‌‌​‌‌​​‌​‌‌‍a vacant in Martin dealt But the fact but other for rent braiding, “still available does not is not an absolute principle this commerce.” closed to interstate wise disregard majority’s apparent warrant gas Here, to the in addition at 1427. F.3d it. provided coverage and insurance service entities, government present out-of-state cases es majority recognizes that the ordered Wing’s restaurant ed evidence principle, Robin tablishing exceptions to this See in interstate commerce. shipped food son, and Lakeside Gomez, 87 F.3d Oregon, 435 S.Ct. U.S. (9th Cir.1996) jury instruction (approving “factually distin are commerce building is in interstate that used fact, inapposite In are guishable.” or for a business building “if itself is used majority’s the dicta to the support do not building pur if that purpose or commercial error was no constitutional effect that there chases, sells, originated or good uses involved facts case. Both cases in the instant state”); States v. jury out of United would mitigatеd came from the risk that the cf. Cir. challenged comment. Pappadopoulos, guilt on the infer based 1995) (“To jurisdictional Lakeside, ele this to defendant’s establish the reference In exclusively ment, contemporaneous on relied to a government was collateral silence jury not infer theory: Pappadopoulos resi should one instruction 333-34, activity in an 435 U.S. at guilt in’ or ‘used from that silence. dence was ‘used particu is it re 1092. This difference because at affecting1interstate commerсe S.Ct. here, gave the court larly significant where gas from out-of-state ceived natural its comment. sources.”). instruction after jurisdictional no curative under Even Robinson, comments came therefore, prosecutor’s gov by Wing, proposed test response to defense counsel’s a direct as case. proved ernment its be- only connection establish a minimal among need several states. tation or communication aspect property some at issue and activity tween the real property was used To show that real commerce, commerce.” government of interstate affecting interstate jurors protec- implicitly encouraged the to ask them- Fifth Amendment attempt to convert why by arguing gov- that the selves the defendant didn’t sword” take the tion “into a from testi- prevented problem the defendant stand. The is that the first answer ernment likely at 108 S.Ct. at 869. to come to mind is that fying. 485 U.S. the defendant case, testify guilty. there are no similar facts refused to because he is the instant See Lakeside, jury unlikely it would draw at that make 98 S.Ct. at majority recognizes from the court’s comment. 1095 n. 10. The adverse inference improper, court’s comment supra was majority’s there is a The “doubt” recognize why. but fails to the reason It was focuses wheth- Fifth Amendment violation on improper prejudicing because it risked jury court’s comment invited the er the by making likely jury defendant it more guilt. I believe it did. The court did infer guilt would infer from defendant’s silence. nor, explicitly, not invite this inference Thus, the Wing’s court’s comment violаted Nonetheless, think, intentionally. the com- rights. Fifth Amendment likely jury made it more would ment guilt from defendant’s silence. infer prejudice Whether there actual was such recognized in The Court the court’s comment constitutes may only jury natural for a to infer that it tougher question. error is a Defendant must guilt from a defendant’s failure to prove prej- the constitutional violation was so 609, 614, California, change udicial as to the outcome of the case. (1965). 1229, 1232-33, Olano, 14 L.Ed.2d 106 United States v. “[wjhat However, infer, jury may given 123 L.Ed.2d 508 help thing. no from is one it necessarily What assessing This involves the court solemnizes the weight infer when of the evidence to if it determine was against into strong silence of the accused evidence so that the court’s comment made no quite him is another.” prejudice difference. The risk of in this ease judge in Although this case did is substantial. The court’s comment not jury guilt specifically not direct the to infer jury’s focused the attention on defendant’s silence, from defendant’s when the court calls testify, did so a context in jury’s as attentiоn defendant’s silence which the court critical of was defendant. here, Moreover, it in much the it did “solemnizes” the court did not correct its error way. same Judicial comments on defen with an immediate curative instruction especially jury dant’s refusal to are dan directing guilt it not to infer from defen- gerous. particular position is in a The court testify.1 Finally, dant’s refusal to the court’s authority in supposed the courtroom. It is during closing arguments comment cam'e objective. importantly, to be Most partiсularly likely ju- was thus to be in the duty protect rights. has a the defendant’s deliberating. govern- rors’ minds while job case, It is the court’s to take care that the strong strong ment but not guilt does not infer from defendant’s silence. enough to convince me that the court’s com- do feel This ensures defendants ment did not affect the outcome of compelled to out of fear of such an respectfully trial. dissent.

inference. 85 S.Ct. at 1233. Yet angrily

when the court remarks to defendant you testify you

“If wanted could have stand,” only high

taken the the court not silence,

lights defendant’s risks the

interpreting expressing disapproval it as surely

defendant’s failure This is

the sort of adverse comment with which the

court should be concerned. The comment ‍‌‌‌‌​‌​‌‌​‌​​​‌​​‌‌‌‌​​‌‌‌​​​‌‌​‌‌​‌​‌‌​‌‌​​‌​‌‌‍agree majority trial to cure the

1. I with the that the court’s reci- end of the is not sufficient along O’Leary, tation of the usual this effect error. Dortch v. instruction to constitutional (7th Cir.1988). with all the other standard at the instructions

Case Details

Case Name: United States v. Harvey Wing

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 16, 1997

Citation: 104 F.3d 986

Docket Number: 96-1868

Court Abbreviation: 7th Cir.