UNITED STATES OF AMERICA, Plаintiff-Appellee, v. MICHAEL FLOURNOY, Defendant-Appellant.
No. 14-2325
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 15, 2016 — DECIDED NOVEMBER 23, 2016
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
I.
In July 2012, the defendant, Michael Flournoy, met Jose Sanabria. During their first meeting, Flournoy discussed hiring Sanabria to do some construction work, but later Flournoy expressed interest in buying cocaine and heroin and offered to pay Jose a finder‘s fee if he found a source. A couple of days later, Jose told Flournoy that his brother, Cesar Sanabria, could help him get cocaine.
On July 27, 2012, Jose met with Flournoy аnd Flournoy showed Jose the money ($186,000) he intended to use to purchase the drugs. A few days later, on July 30, 2012, Jose told Flournoy that the supplier was ready and they agreed to meet at Cesar‘s apartment. There the three counted the buy money and Flournoy put it in the trunk of his silver Honda. Flournoy, Jose, and Cesar, along with Cesar‘s girlfriend, Jovita, drove from Chicago to Rockford for the planned cocaine deal. Unfortunately for them, they did not know that the supplier was an undercover officer.
That undercover officer, Bob Juanez, had started talking with Cesar about a week earlier about supplying cocaine. In a recorded conversation, Cesar and Agent Juanez discussed Cesar selling marijuana to Agent Juanez and Agent Juanez selling cocaine to Cesar. Following several more recorded calls, Cesar agreed to buy six kilograms of cocaine from Agent Juanez.
At the Holiday Inn, Cesar briefly spoke with Agent Juanez inside the agent‘s pickup truck. Cesar then exited the truck and got in Flournoy‘s Honda before returning to the pickup truck. At that point, Agent Juanez called his partner, Detective Barrios, who was posing as his wife, and she drove by the pickup truck and showed Cesar an ice cooler containing what аppeared to be cocaine.
In the meantime, ATF Special Agent John Richardson and Winnebago County Sheriff‘s Deputy Kyle Boomer were watching the drug deal go down from inside a surveillance van. Special Agent Richardson testified that he saw Flournoy go to the trunk of the silver Honda, get out a black bag and put green-wrapped bundles in the bag and then place the black bag in the back seat of the Honda. After this everyone relocated to a Wal-Mart parking lot. At this point, Flournoy exited the Honda with the black bag containing the buy money and dumped the money into the undercover agent‘s pickup truck. Agent Juanez then pretended to call his wife to instruct her to bring over the cocaine, but that was really the arrest signal. Officers then arrеsted Flournoy, Cesar, and Jose.
The government charged Flournoy, Cesar, and Jose with conspiring to possess with intent to distribute six kilograms of cocaine and attempting to possess cocaine, in violation of
Cesar and Jose eventually both pleaded guilty to the charges. Jose testified at Flournoy‘s trial, but Cesar did not. During trial, Jose testified as laid out above. Of significance for this appeal, Jose testified that Flournoy had moved the black bag with the buy money from the Honda trunk to the inside of the car. However, Jose‘s plea agreement stated “[t]he defendant pulled out bundles of cash from the trunk of the Honda, put the cash into a duffle bag, and returned the bag to the trunk.” During the
During closing аrgument, Flournoy‘s attorney repeatedly commented upon the government‘s failure to call certain witnesses. For instance, his attorney argued: “Yet you sit here today never having heard a peep from Deputy Boomer, Deputy Boomer not coming in to tell you anything regarding this investigation or to support and corroborate what Agent Richardson said. Just gone. Not brought in.” Hе continued: “You have to see and ask whether or not that witness is somebody that should be brought in, somebody that you should hear from to support.” Later his attorney stressed this point again,
In its closing argument, the prosecutor responded by stating: “Now, the government has the burden, but ladies and gentlemen, the defense can call witnesses too, if they want.” Flournoy‘s attorney objected, stating that “a defendant has an absolute right not to testify or present evidence.” Following arguments outside the jury‘s presence, the district court overruled the objection. After the jury returned, the district court read the following instruction to the jury, “A defendant has an absolute right not to testify or present evidence. You may not consider in any way the fact that the defendant did not testify or present evidence. You should not even discuss it in your deliberations.”
The prosecutor then returned to its closing argument, stating:
As I indicated, the burden is on the United States. We accept that burden. The defense has no, no obligation to present testimony in any form. However, they do have the same subpoena powers as the United States, and if they wanted to subpoena in and to have testify surveillance agents, telephone records person, or anybody else, they could have done that if they had wanted to, if they had thought it would have been appropriate or hеlpful. Granted, they don‘t have the burden to do so, but they do have the power to do so.
Ladies and gentlemen, you‘re here as a jury because we don‘t try people based upon hiding the ball. We try people based upon the facts. Not what ifs, not maybes, not could-have-beens. The United States would not bring a case based upon that because it wouldn‘t work. We bring cases built upon facts, facts adduced by testimony and by witnesses and by exhibits, and that‘s what you need to focus on.
Following deliberations, a jury convicted Flournoy on all counts. The district court then sentenced him to 204 months’ imprisonment, followed by concurrent terms of five years’ supervised release. In addition to the mandatory conditions of supervised release, the district court imposed several additional discretionary conditions of release. Flournoy filed a motion for a new trial, arguing the evidence was insufficient to support his conviction, that the government‘s closing argument was improper, and that the government knowingly used perjured testimony. The district court denied the motion for a new trial. Flournoy appeals.
II.
A. Motion for a New Trial
On appeal, Flournoy argues that thе district court erred in denying his motion for a new trial under
Flournoy‘s claim of prosecutorial misconduct focuses on two comments made by the government during closing argument. First, he maintains the prosecutor engaged in misconduct by highlighting that Flournoy could call witnesses to testify. Flournoy argues that this line of argument wrongly shifted the burden of proof to Flournoy.
This argument is misplaced. “[A]s long as it is clear to jurors that the government carries the burden of proof, the prosecutor may tell the jury that a defendant has thе power to subpoena witnesses.” United States v. Miller, 276 F.3d 370, 374–75 (7th Cir. 2002). In this case, the prosecutor explicitly stated twice that the government bore the burden of proving Flournoy‘s guilt. The prosecutor also stressed that “defense has no, no obligation to present testimony in any form.” Further, in the midst of the government‘s closing argument, the district court interjected and instructed the jury: “A defendant has an absolute right not to tеstify or present evidence. You may not consider in any way the fact that the defendant did not testify or present evidence. You should not even discuss it in your deliberations.” “We presume that juries follow instructions.” Id. at 375. Further, “[i]n a case like this where the defendant himself has broached the subject of missing wit-
Flournoy also claims the prosecutor engaged in misconduct by improperly vouching for its witnesses by stating:
[W]e don‘t try people based upon hiding the ball. We try people based upon the facts. Not what ifs, not maybes, not could have beens. The United States would not bring a case based upon that because it wouldn‘t work. We bring cases built upon facts, facts adduced by testimony and by witnesses and by exhibits, and that‘s what you need to focus on.
Flournoy did not object to this argument, so his claim of prosecutorial misconduct is reviewed for plain error. Id. at 869–70. To establish plain error, Flournoy must show the improper vouching was “obvious, affected the defendant‘s substantial rights to such an extent that he would not otherwise have been convicted, and seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Alexander, 741 F.3d 866, 869 (7th Cir. 2014). As we explained in Alexander, “[t]hat is a lengthy way of saying that we will not grant [the defendant] a new trial unless there was an error so egregious that the district judge should have stepped in even though no objection was made.” Id. at 870 (footnote omitted).
“We have recognized two types of impermissible vouching: ‘a prosecutor may not express her personal belief in the
Finally, Flournoy claims he is entitled to a new trial because Jose‘s testimony conflicted with the facts to which Jose admitted earlier in pleading guilty. Specifically, at Flournoy‘s trial Jose testified that on the night of the drug deal Flournoy went to the trunk of the Honda and removed a bag containing the buy money, placing the bag inside the car. Conversely, Jose‘s plea agreement stated that Jose removed the money from the trunk of the car. Cesar‘s plea agreement likewise identified Jose as the individual responsible for moving the
Initially we note that on appeal Flournoy does not claim that Jose testified falsely at his trial; rather, Flournoy argues that the government violated his due process rights by presenting inconsistent theories of guilt at his trial and in the cases presented against his co-defendants, Jose and Cesar, who pleaded guilty. While this court has noted that the circuits are split on whether such conduct violates the Due Process Clause, this court has not yet taken a position on the issue. United States v. Presbitero, 569 F.3d 691, 702 (7th Cir. 2009). See also Bradshaw v. Stumpf, 545 U.S. 175, 190 (2005) (Thomas, J., concurring) (“This Court has never hinted, much less held, that the Due Process Clause prevents a State from prosecuting defendants basеd on inconsistent theories.“). We need not do so today either because, even if this theory were viable, Flournoy would not be entitled to a new trial.
A defendant is entitled to a new trial only if there is a reasonable possibility that the trial error had a prejudicial effect on the jury‘s verdict. United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996). There is no such possibility in this case. First, there is no indication that Jose‘s testimony at Flournoy‘s trial was false, as opposed to the language in the plea agreements. That was the government‘s position below when it explained the discrepancy to the district court: the prosecutor explained that it had drafted Flournoy‘s plea agreement first, believing he would be the one to plead guilty, and then used that plea agreement as a template for Jose and Cesar‘s plea agreements. However, in doing so, the government failed to change the language to identify Flournoy as the individual who moved
B. Supervised Release
Flournoy also argues on appeal that the district court erred in sentencing him tо a five-year term of supervised release that included discretionary conditions of release, because the district court did not explain its rationale for imposing those terms. This court has held that it is reversible error for a district court to impose discretionary conditions of supervised release without considering the sentencing factors set forth in
III.
A jury heard extensive evidence establishing that Flournoy conspired with Cesar and Jose Sanabria to possess six kilograms of cocaine with the intent to distribute, and attempted to possess with intent to distribute the cocaine. While in pleading guilty, Jose indicated that he—and not Flournoy—had removed the buy money from the trunk of the Honda, there was no evidence that Jose lied during his testimony at Flournoy‘s trial. Nor is there a reasonable probability