Lead Opinion
Following a jury trial Lamarvin Darden was convicted of possessing with intent to distribute cocaine base, being a felon in possession of a firearm, and being an unlawful user of a controlled substance in possession of a firearm. The district court
I.
In October 2010 the St. Louis Metropolitan Police Department received information from a confidential informant (Cl) indicating that Darden, a convicted felon, was distributing illegal drugs out of his grandparents’ house. Police began surveillance of Darden and observed him in what appeared to be hand to hand drug transactions at their residence and saw him holding his waist in a manner consistent with concealing a firearm. Based on information from the Cl and their own observations, the police obtained a search warrant for the grandparents’ residence.
As they were preparing to execute the search warrant, the police saw Darden and the Cl arrive at the residence in a Jeep, enter the house, and leave a few minutes later, headed back to the Jeep. Police approached the Jeep and saw Darden throw a bottle of NyQuil through the open window. They arrested both Darden and the Cl, telling them they had a search warrant for the home.
While executing the search warrant, Detective Anthony Boettigheimer spoke with Freddie and Birdie Houston, Darden’s grandparents. The detective testified that Mrs. Houston told him that she had been sewing in her bedroom when Darden arrived at the house. She explained that he had come into her bedroom, removed a ballistic vest from under his t shirt and placed it on the bed, and then stuffed an unknown object under the mattress. The detective asked Mr. Houston if he had any guns in the house. He replied that he did keep guns in his bedroom, which was separate from Mrs. Houston’s, and that he owned a 9mm handgun.
Detective Boettigheimer then searched Mrs. Houston’s bedroom where he saw a bulletproof vest lying on the bed and found a 9mm handgun under the mattress. Both were seized. According to trial testimony
One week following Darden’s arrest, a federal grand jury convened to consider his case. The Houstons had been subpoenaed to testify and the government also planned to present the testimony of Detective Joseph Steiger, a police officer who had been present when the search warrant was executed. On the morning of the grand jury hearing, the prosecutor and Detective Steiger met with the Houstons outside the grand jury room. Mrs. Houston said that she did not remember seeing the ballistic vest on her bed or seeing Darden place anything under the mattress. Mr. Houston explained that the 9mm handgun was in a drawer in his bedroom at the time the warrant was executed, and thus the police must have taken it from there rather than finding it under the mattress in his wife’s bedroom.
Detective Steiger was the only witness called at the grand jury proceeding. He testified as a summary witness about the Houstons’ statements at the time of Darden’s arrest. He then related the positions the couple had taken on the morning of the grand jury proceeding, saying that the Houstons had both “kind of changed their statements” after the day of the search. He testified that after hearing their changed statements, he and the prosecutor had decided not to call them as witnesses. Members of the grand jury asked several questions about the Houstons’ changed positions which Detective Steiger and the prosecutor answered. The grand jury returned an indictment charging Darden with unlawful possession of a firearm.
Darden filed motions to suppress evidence seized from the Houstons’ house and statements he had made following his arrest. He also filed a motion to dismiss the indictment based on the government’s failure to call the Houstons to testify before the grand jury and alleged improper commentary from the prosecutor during the hearing. The district court denied the motions.
A five count superseding indictment was subsequently returned charging Darden with possessing with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(C), possessing with intent to distribute hydrocodone, id., being a felon in possession of a 9mm semiautomatic pistol, 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e)(1), possessing a 9mm semiautomatic pistol while being an unlawful user of or addicted to a controlled substance, id. §§ 922(g)(3), 924(a)(2), (e)(1), and being a violent felon in possession of body armor, id. §§ 931(a), 924(a)(7).
Darden’s case proceeded to a four day jury trial during which the government called seven police officers, three criminalists, a drug distribution expert, a Federal Rule of Evidence 404(b) witness,
Detective Boettigheimer testified regarding information received from the Cl, his corroboration of that information through surveillance, the evidence seized while executing the search warrant, his conversations with the Houstons at the time of the search, and Darden’s comments in the squad car when asked about the seized evidence. On cross examination defense counsel questioned the detective about the facts that the Cl had indicated that Darden had both a 9mm and a .45 caliber firearm but the police had never found a .45 caliber firearm. During redirect the government played a phone call recorded between Darden and an unidentified man while he was in jail following his arrest. In the recording Darden said “I was trying to call you but you know what I’m sayin’ have my girlfriend give you uh, that nickel for me.... [Ljet you hold onto it, it plays xbox you hear me? ... I had a nickel over there man, I wish you could hold onto it man.”
Boettigheimer testified that a .45 caliber gun is sometimes referred to as a “nickel” and that the xbox video game system can be used to conceal guns. The government then introduced into evidence a photograph from the Houstons’ home apparently depicting a red xbox and also attempted to introduce an internet printout of a red xbox for comparison purposes. The district court sustained an objection by defense counsel to introduction of the printout as unduly prejudicial. The government then called another police officer and introduced the printout through him. Defense counsel made no objection to this introduction of the printout.
The jury then heard testimony from a police officer who had overheard Darden make a phone call after he was booked in which he asked a friend to try to get his grandfather to claim possession of the gun taken into evidence, explaining he could not afford to be charged with a gun crime due to his criminal record. The government also presented Rule 404(b) evidence from a St. Louis police officer regarding a previous instance in which Darden had hidden a gun under a mattress. Testimony from the Cl indicated that he had seen Darden with 9mm and .45 caliber guns, as well as a bulletproof vest. He also said that just before Darden’s arrest the two men had entered the Houstons’ home where Darden dropped off a gun and a ballistic vest. The jury also heard testimony from two officers involved in an August 2010 incident in which Darden consented to a search which revealed him to be carrying cocaine base and hydrocodone pills and formed the basis of charges involving those drugs.
The jury found Darden guilty of possessing with intent to distribute cocaine base, being a felon in possession of a firearm, and being an unlawful user of a controlled substance in possession of a firearm. It acquitted him of possessing with intent to distribute hydrocodone and being a felon in possession of body armor. The district court sentenced him to 200 months imprisonment.
Darden appeals, arguing that his conviction should be reversed because the government committed misconduct during grand jury proceedings, the district court erred by admitting testimony regarding the xbox video game console and .45 caliber pistol because it was not relevant and unfairly prejudicial, and the government’s closing argument contained improper remarks that substantially prejudiced his right to a fair trial.
II.
We first address Darden’s contention that the district court erred by
Darden argues that the government acted improperly by not calling the Houstons to testify in front of the grand jury, thus keeping exculpatory evidence from the grand jury. The government is not obligated to present exculpatory evidence in grand jury proceedings, however, since “the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge,” an undertaking for which it “has always been thought sufficient to hear only the prosecutor’s side.” See United States v. Williams,
While the government had no obligation to present the Houstons’ testimony, the grand jury was told that the Houstons disputed the comments attributed to them at the time of the search. Darden takes issue with one of the prosecutor’s questions which asked Detective Steiger whether Mrs. Houston had “recanted” her earlier statements. Darden claims she did not “recant” her statements since she denied ever having made them. We agree with the district court’s characterization of this argument as one of “semantics” because the grand jury was made aware that the Houstons contested the police version of what had been said.
Darden next argues that the prosecutor acted improperly by impugning the credibility of the Houstons through a suggestion that he had threatened his grandparents. He seizes on the following exchange which occurred after the prosecutor asked whether the grand jurors had any questions.
G. Juror: Did you guys question the grandparents as to whether their grandson had threatened them, or if any of his friends had threatened them, or if any harm was going to come to them if they didn’t change their story?
Steiger: Today, you mean?
G. Juror: Uh-huh.
Steiger: No, we didn’t talk about threats at all with [the Houstons]. I think they were more concerned with— if they don’t come in here, then they probably don’t have anything to worry about because they are not going to have any part of being testimony against him. But we can address that after-wards with them, too, ma’am.3
G. Juror: I think that’s important to know, because elderly folks are very intimidated and sometimes ruled by their family members. That’s ...
Prosecutor: Absolutely. You know, that’s one of the reasons—well, I don’t want to say anything before you vote.
Rather than supporting Darden’s argument, this exchange makes clear that any suggestion that the Houstons had been intimidated by Darden initiated with the grand jurors themselves, not with the government. The prosecutor acted properly by refraining from discussing intimidation with respect to the Houstons prior to the grand jury’s vote. Nothing in this record establishes the “flagrant misconduct” by the prosecutor or “substantial prejudice”
We next turn to Darden’s argument that the district court erred by admitting evidence regarding a .45 caliber gun and an xbox. At trial Darden’s only objection to this evidence was to the introduction through Detective Boettigheimer of an internet printout depicting an xbox. This picture was later admitted through another witness without objection. Our review is thus for plain error. See United States v. White Bull,
Darden contends that any evidence concerning a .45 caliber gun and an xbox was irrelevant and unfairly prejudicial because he was not charged with possession of a .45 caliber firearm. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Relevant evidence may be excluded, however, “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury____” Fed.R.Evid. 403.
We conclude that the evidence related to the .45 caliber firearm and an xbox became relevant after defense counsel’s cross examination of Detective Boettigheimer. Counsel asked the detective if it were not true that the police had never recovered a .45 caliber weapon, thus impugning the Cl’s anticipated testimony that Darden had had both a .45 caliber and a 9mm gun. Because of this cross examination by the defense, the following evidence was relevant to corroborate the Cl’s story: evidence that Darden had previously talked about having a “nickel,” that that term can be used to refer to a .45 caliber firearm, that such weapons can be hidden in xboxes, and that the Houstons’ house had an xbox. The evidence was not unfairly prejudicial because it did not have an “undue tendency to suggest decision on an improper basis.” United States v. Looking Cloud,
We turn finally to Darden’s argument that his conviction should be reversed because the prosecutor made improper statements in closing argument. A prosecutor’s improper comments during closing argument can require reversal of a conviction if they “prejudiced the defendant’s rights in obtaining a fair trial.” United States v. Herbst,
We begin by analyzing the content of both parties’ closing arguments. In her initial closing argument, the prosecutor reviewed the elements of each crime charged and explained how the evidence at trial proved each of those elements beyond a reasonable doubt. Defense counsel set the theme for his closing argument with a quote from the children’s book The Berenstain Bears and the Truth: “No matter how you hope, no matter how you try, you can’t make the truth out of a lie.” He later said “I don’t come right out and say, police officers are liars. I don’t do that. I think it’s inappropriate. But ask yourself, what facts have you heard that just defy common sense[?]” He further argued that “[n]o matter how hard he hoped, no matter how hard he tried, [Detective Boettigheimer] could not make the truth out of [the Cl’s] lies” and that Boettigheimer had had to “stretch[ ]” and “manipulatef ] [the] truth.” Defense counsel also asked the jury to “imagine how Boettigheimer felt when there’s nothing at a search warrant after he did all of his due diligence in this case,” thus implying that the detective had lied about finding the 9mm gun under the mattress so that he would have something to show for his investigation.
The prosecutor began her rebuttal by referring to the theme Darden’s attorney had presented, stating
Mr. Lynch has freely used the expressions manipulation, stretching the truth, lying, and I would dare to say that’s what you just heard. Let’s go through some of the things he just said to you that were not based on the evidence.
She then proceeded to discuss why the evidence did not support defense counsel’s criticisms of the government’s case.
Darden argues that the prosecutor made improper statements in her rebuttal argument when she focused on the potential consequences to police officers for giving false testimony and the risks they take on the job. He highlights the following statements as particularly problematic.
If you find that these detectives are not telling the truth, then what you are finding is that they all got together and they entered into a criminal conspiracy to put an innocent man in prison. Every single one of them ... they all got together and conspired to commit a crime. They risked their careers, they risked their families, they risked their lives to put this man in prison when he didn’t do anything? Does that make any sense at all?
* * *
If you don’t believe all of these officers and you want to say that they conspired to put an innocent man in prison, look at what they do. This is the violent offenders unit. They take the biggest risk of all. They are going after people who are proven to be violent, who carry guns and cause a risk of harm to them. If you don’t believe them, you are telling them that what they do is meaningless, that they might as well not do it, they might as well stay home or maybe get a new job or don’t go out on the streets, don’t try to help the honest residents, the people who are hearing gunfire every night and who are worried about sitting out on their porch in their own safety.
* * *
Because you would be telling them that no one appreciates them and no one appreciates the job they are doing. And I don’t think that’s what you want to do. Thank you.
We have long recognized that it is improper for the government to imply that an acquittal would mean the jury believed that police officers acted dishonestly. See, e.g., United States v. Miller,
Even though these rebuttal remarks were improper, our review in this case is only for plain error, unlike the situation in Miller. See
When analyzing the harmfulness of a prosecutor’s improper remarks in closing argument, we “not only weigh the impact of the prosecutor’s remarks, but must also take into account defense counsel’s opening salvo.... [I]f the prosecutor’s remarks were ‘invited,’ ... such comments would not warrant reversing a conviction.” United States v. Young,
The wealth of evidence of Darden’s guilt on the counts of conviction indicates that the result at trial would not have been different absent the prosecutor’s rebuttal comments. See United States v. Barrera,
While the dissent describes the evidence supporting the conviction as weak because it is based in part on hearsay, two officers testified concerning the most significant piece of hearsay: Darden’s statement at the time of his arrest that he had placed the 9mm weapon under a mattress shortly before the officers had arrived. Although the grandparents later denied making the statements police attributed to them, evidence that Darden phoned a friend from jail and asked him to have his grandfather claim possession of the gun provides an explanation for why the grandparents may have changed their stories. The dissent suggests that the Cl’s credibility is suspect because he is himself a convicted felon, but Detective Boettigheimer testified that he had taken measures to corroborate the Cl’s story which was also supported by the evidence regarding Darden’s jail message about a “nickel” and an xbox.
Moreover, the fact that the jury acquitted Darden on two of the five counts suggests that the challenged remarks did not prevent the jurors from viewing the evidence fairly and maintaining the burden of proof on the government. See United States v. Plumman,
III.
Accordingly, we affirm the judgment of the district court.
Notes
. The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri.
. A new version of the Federal Rules of Evidence went into effect on December 1, 2011 as part of the Federal Rules Style Project. Changes made as part of this project are "intended to be stylistic only.” See Fed. R.Evid. 101 advisory committee’s note. All quotations here are from the rules in effect during Darden’s May 2011 trial.
. In his brief Darden attributes this statement to the prosecutor; the transcript indicates, however, that it was made by Detective Steiger.
Concurrence Opinion
I concur in the majority’s opinion except the portion concerning prosecutorial misconduct, Part II, ante at 388-91. Because I would hold that the government’s misconduct in the rebuttal portion of closing argument resulted in cumulative prejudice to Lamarvin Darden’s right to a fair trial, and because that misconduct impugned the fairness, integrity, and public reputation of judicial proceedings, I dissent.
For this court to reverse under plain error review, an appellant must show an “ ‘(1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Pirani,
I.
The majority concludes that the prosecuting Assistant United States Attorney (AUSA) made improper remarks in rebuttal when implying that, to acquit Darden, the jury had to believe the police officers lied. I fully agree with this conclusion, as the AUSA’s argument distorted the government’s burden of proof. See United States v. Reed,
The AUSA also made improper comments in rebuttal when telling the jury that an acquittal would jeopardize the rule of law and place “honest residents” at risk. A federal prosecutor may not tell the jury that it must choose between a guilty verdict and the safety of “honest residents.” The prosecutor’s protect-the-community argument was entirely unrelated to the jury’s task in a criminal trial, which is to determine whether the government has proved its case beyond a reasonable doubt. See Washington v. United States,
In addition to improperly shifting the burden of proof, making a protect-the-community argument, and encouraging a bias-based conviction, the AUSA again went out of bounds by leveling personal attacks on the integrity and competence of defense counsel before the jury. Following the conclusion of defense counsel’s closing arguments, the AUSA began her rebuttal by stating to the jury: “[defense counsel] has freely used the expressions manipulation, stretching the truth, lying, and I would dare to say that’s what you just heard. Let’s go through some of the things he just said to you that were not based on the evidence.” In addition, the AUSA asked the jury: “What makes [defense counsel] an expert on how the police are supposed to conduct their business? He’s not.” These statements were improper because they “ ‘encourage[d] the jury to focus on the conduct and role’ of the defense team rather than the evidence, and because the inflammatory nature of the statements was designed to anger the jury through general denigration of the defense.” United States v. Rodriguez,
Improper burden shifting, appeals to the jury’s emotions, encouraging a bias-based conviction, and personal attacks on defense counsel are “offensive to the dignity and good order with which all proceedings in court should be conducted.” Viereck v. United States,
II.
I would hold that the cumulative effect of the AUSA’s improper remarks prejudiced Darden’s substantial rights. The evidence against Darden was not strong enough to overcome the prejudice caused by those remarks. Further, to the extent that there was any “invited” rebuttal, the prosecutor is not allowed to use improper comments to rebut the defense arguments.
Prosecutorial misconduct affects a defendant’s substantial rights if it was prejudicial and affected the trial’s outcome. United States v. McClellon,
Taken separately, the improper remarks are problematic for the reasons outlined above. Their full effect on Darden’s substantial rights, however, comes into sharper focus when their cumulative impact is considered. “[W]e have not here a case where the misconduct of the prosecuting attorney was slight or confined to a single instance, but one where such misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential.” Berger,
I would hold that the cumulative effect of the improper statements was significant enough to affect Darden’s substantial rights. By impugning defense counsel’s competence and integrity, the AUSA laid claim to superior legal acumen — thereby magnifying the jury’s tendency to trust the government. Because of this, when the AUSA made other improper statements, the jury was apt to rely on those statements not only because they carried the imprimatur of the government but also because the prosecutor’s attacks on defense counsel “suggested] broader knowledge, experience and expertise by the government in such matters.” Rodriguez,
Further, I do not believe the “invited response” doctrine justifies the comments. It is true that defense counsel took hard shots at the investigating officers, essentially accusing them of being lazy and conducting a sloppy investigation. While defense counsel focused his arguments about lying on the confidential informant — himself a convicted felon — and did not explicitly accuse the officers of fabricating testimony, I concede he came very close to that line. The prosecutor justifiably wanted to come to the defense of the testifying officers. However, that does not give license to engage in personal attacks on defense counsel, and neither did it license the prosecutor’s appeal to jury bias. If defense counsel opened the door at all, that door was only opened to arguments that right the scales: it did not open the door to improper argument limited only by the prosecutor’s imagination. See Chicago & N.W. Ry. Co. v. Kelly,
The prosecutor’s personal attacks on defense counsel, plea for the jury to act as a general bulwark for law and order, appeals to emotion over reason, and inflammation of jury bias were all improper and cannot be wholly excused by the “invited response” doctrine. Here, “use of the doctrine ... minimizes] the gravity of virtually unchecked prosecutorial appeals going far beyond a ‘fair’ response to the defense counsel’s arguments.” Young,
Turning to the next factor — the strength of the properly admitted evidence — I believe that the government’s case against Darden was not strong enough to overcome the cumulative effect of the misconduct. While a challenge to the sufficiency of the evidence would likely fail in this case, such a challenge is not before this court. Instead, the question is whether, in light of the strength of the evidence, there is a “ ‘reasonable probability that the outcome would have been different absent the alleged error.’ ” United States v. Herbst,
As the majority opinion makes clear, the possession case against Darden turned almost entirely on officer testimony, much of which was hearsay. The remainder of the evidence — a prior incident in which Darden placed a gun under a mattress, and testimony from a confidential informant that Darden possessed a 9mm weapon— was circumstantial and turned on the jury’s credibility determination, respectively. Thus, the evidence of Darden’s guilt was neither overwhelming nor very strong.
But for defense counsel’s failure to preserve the error, this case would fall squarely within the constellation of cases in which this court has reversed a conviction for prosecutorial misconduct. In United States v. Norton,
While the evidence in this case is similar to that found in Conrad, Miller, and Norton, the level of prosecutorial misconduct in this case far outstrips the misconduct in those cases. In Conrad and Norton, the sole instance of misconduct was the prosecutor’s description to the jury of the purpose behind the Gun Control Act. Conrad,
Finally, I do not view the jury’s partial acquittal of Darden as somehow demonstrating that the prosecutor’s misconduct did not prejudice Darden. Rather, “[t]he jury’s decision can just as naturally be interpreted to suggest that the evidence was close and the verdict a compromise, thus supporting a belief that the prosecutor’s [misconduct] ... did in fact have a prejudicial impact.” Young,
Balancing, as we must, the strength of the evidence against the cumulative effect of the prosecutorial misconduct, I am compelled to find prejudice sufficient to establish “ ‘a reasonable probability that the outcome would have been different absent the alleged error.’ ” Herbst,
III.
I would hold that the error in this case satisfies the fourth criterion for reversal under plain error review, in that it seriously affected the fairness, integrity, and public reputation of judicial proceedings, and I would accordingly reverse and remand for a new trial. See Pirani,
. I note, however, that even "a single misstep on the part of the prosecutor may be so destructive of the right to a fair trial that reversal is mandated.” Johnson,
. This court regularly describes the proof needed to overcome misconduct as either "overwhelming” or "very strong.” United States v. Singer,