*1 America, STATES UNITED
Plaintiff-Appellee, POANDL, Defendant-Appellant.
Robert
No. 14-3143. Appeals, States Court
Sixth Circuit. 16, 2015.
June *2 BATCHELDER, MOORE,
BEFORE: SUTTON, Judges. Circuit BATCHELDER, M. ALICE Circuit Judge.
In a federal found Father Poandl, Robert priest, guilty Catholic charged transporting a minor in inter- state commerce with the intent engage in activity sexual with him. charge had stemmed from a trip allegedly taken in which Poandl trans- ported old, Harper, years then ten from Ohio Virginia, to West where Poandl raped boy. appeals Poandl now conviction, claiming numerous errors in his error, trial.' Finding no we AFFIRM. I. grand jury a federal indicted
Poandl for one count of knowingly trans- porting an individual under the age eighteen interstate commerce with the any intent that engage such individual activity sexual for which can person be offense, charged with criminal in viola- § Many tion of 18 U.S.C. witnesses during four-day testified trial held before the federal district court. Their testimony is summarized here. fiancée, Cope, Harper’s
Lauren testified that she became aware of the sexual abuse 2009 when she mentioned him wedding that she wanted their place take in a church. Harper Catholic agitated, became and terminated his rela- tionship Cope day. day the next that, Harper Cope explain after called why up broken with her. She had parents him to tell his about the convinced abuse, couple eventually reunited. later, house and told came Harper’s moth- Harper, David Barbara husband, visiting not be that he would Barbara er, and her testified that she none of anymore because Harpers’s house Mike, in 1988 with to Cincinnati moved sons, It Chris, Joe, David, priests. to be promise showed her children: their four Marriage Encounters Catholics, uncontested that and Mike Devout she Amanda. *3 priests. for Encounters, program is not a recruitment Marriage in became involved to program designed a weekend retreat 1991, Barbara no- of After the summer Marriage Each strengthen marriages. change. He begun David had to ticed that couples featured group Encounters three nightmares, and he frequently have priest for priest. and a Poandl was who to associate with individuals began group. Encounters Marriage Harpers’s It was significant troublemakers. however, 6, 2009, David until June Harper lost his not In Mike November happened what had this, told his mother during spring finally Because of job. of 1991. came their in the summer of Poandl to and summer unannounced. frequently, often house Bar- of During the cross-examination food, came, bring he would often When he bara, to elicit attempted counsel defense couple money pay to gave and once he information, various using of pieces two bills. monthly publi- a magazine, issues of Share groups Encounters Marriage cation for the Although she could not i*emember First, date,” area. he at- geographic believed that some- in that “exact Barbara main- Harpers to show that the August” tempted time “around af- relationship he a with Poandl even by the house and told her that tained came with them in allegedly cut off Virginia. a in She ter had to cover mass West ties May Bar- of 1991. that Poandl arrived at her house summer testified publish- a that was dinner, or bara had written letter around 4:30 probably before expressed sad- magazine Bar- ed in Share in the afternoon. Poandl asked 5:00 transfer of “Father Bob” out of accompany her could ness at the bara if one of sons area, company saying him that the com- trip keep him on the the Cincinnati on week- munity presence would miss “his stay him awake at the wheel. She help old, our communi- David, if he ends and in our homes ancl years then ten asked initially ty.” willing go, and he would be “Father Bob responded,
refused. Barbara Second, attempted defense counsel us, you know. Please good has been so begun not have a prove that Poandl could an packed with him.” Barbara go in the afternoon journey Virginia to West watched as Poandl and overnight bag and 3, 1991, Barbara had August in left. She testified that left her son testified, a given Poandl had blue-gray sedan. evening of that speech in on the Cincinnati contention, evidence of this de- morning, day. the next As When David returned May copy counsel introduced a noticed that he did not look well. fense Barbara that announced Com- right, magazine him if he was all to which of Share She asked August munity Night event scheduled that he felt sick because replied p.m., at 7:30 at St. Wil- starting him with lem- given Poandl had cornflakes Church, Cincinnati, at which He asked if he ever liam’s onade for breakfast. Holy trip would discuss his anywhere again; with Poandl go had to government’s at- Land. To counter answered that he did not. He Barbara might have that the event clearly upset. tempt ran Weeks show upstairs, then date, on a actually place taken different awake. When shown a picture of David Poandl also introduced the from she testified that he “certainly issue of Share which contained two letters resembles the child saw that examination, however, Sunday.” of note. One was letter Barbara On cross handwriting, dated Harper’s “August she admitted that she had not been able to 1991,” boy on an unrelated matter. The other describe the she had Sunday seen that “August was dated 1991” and was Barbara by when interviewed police Further, Harper’s taking thanks to Poandl for time she admitted that had con- §he busy presen- out of his schedule to make a process cluded of elimination that said, tation on 3. That letter “We Poandl was connected to her memory of enjoyed couples present hearing boy sitting and other in the nave: She knew that your your Holy from priests stories travels to the three had ever substituted for *4 testified, year.” Harper and, Land earlier this Father Fredette going after back however, that was a pro- through journal Share homemade her and seeing no mention always boy duction and not accurate: these of a accompanying her entries on the Community Nights priests, were often cancelled other two memory she decided the changed, and the dates were often so if a must be connected to Poandl’s visit. Al- stating though letter a definite date were submit- there was boy no mention of a in event, prior might either, ted to an the letter journal entry her about Poandl she accurate. be And testified as well testified that she knew personally the oth- attending that she had no recollection of er two substituting priests and knew that particular Community Night event. neither of them would have a brought boy with them. Fredette, Holy Paul the priest at Re- Handorf,
deemer in Spencer, Virginia, Church West Larry private investigator August August by from 1988 to testified hired the mission where Poandl was that he had asked Poandl to cover a mass based in testified that an during Poandl, pinpointed for him. He the date of interview of he had admitted that coverage Poandl’s be- “he vaguely taking remembered David state, journal cause he checked the of his now- somewhere out of but didn’t think it wife, secretary parish Spencer, Virginia.” During who was of the at was West this time, interview, saw that and Poandl had led Poandl stated that he would fre- day. bring boys mass that him quently to travel with awake, him “they help stay Fredette, secretary Holy Karen experience.” would have a Catholic in August Redeemer Church testified victim, Harper, that Poandl had covered for Father Paul then alleged David once, only Fredette it He took and was on testified. testified that Poandl him in meeting trip 1991. She remembered with on a the late summer of morning August August, ten-years-old. Poandl the at which around when he was in point They early Poandl stated that he was tired be- left late the afternoon or he had in town at a.m. six or five.” Poandl evening, “probably cause arrived boy him noticing sitting She remembered drove a sedan David remembered driving alone the nave of the church who looked on other occasions. When the two boy Virginia, they spent “tired or even sad.” Poandl in West asked arrived rectory up during par- night to stand the service so the at the church. David boy point night ish could thank the with at some in the traveling awoke find him bed and had during night keep that Poandl had entered his cross-examination, defense coun- During David’s pants, fondling his hand in David’s various times attempted point out he was sel David asked what When genitalia. his interview during David had lied checking replied that he was doing, Poandl First, that he David had said police. wearing if David was underwear. to see for football scholarship offers had received only to be awak- asleep again, David fell the team because prior being kicked off sodomizing him. later ened abuse, not true. drug which was of his out, you doing cried “What David the stand that he David also admitted on replied, hav- to which Poandl “We’re me?” just marijuana smoke done more than had finished, he After Poandl ing sex.” school; pain he also took LSD and high extremely kept remorseful and re- seemed drugs obtaining He admitted to pills. also a bad thing. “I did a bad did peating, felony in prescription Ohio— without —a regaining composure, After thing.” Defense working pharmacist. while as a sinned, sinned, David, “You and I said to details that highlighted counsel further pray forgive- we need to to God for but had not during mentioned trial ness,” point they prayed together. at which police, to the such report mentioned in his running remembered semen down running leg. down his as semen told him point that Poandl leg, go up. Sabo, clean himself that he should who was the or- Finally, William *5 1991, magazine in testi- ganizer of Share re-' day, The next Poandl told David organizer that his first issue as fied hap- what had peatedly keep to himself August 1991 issue. Because he and There was not much for breakfast pened. cou- his wife had taken over from another church, gave Poandl David corn- at the so time, that ple and the transition took some mass, with lemonade. After the flakes later than usual. He published edition was place took David to a breakfast probably published that it was estimated road, where David ate steak and down the He further admitted 1991. eggs. David later identified this breakfast in the events announced that sometimes Queen as the Bee Diner. Poandl place can- magazine would be rescheduled or family. back to his then took David testimony, prose- celled. After Sabo’s cution rested. that, David testified once he reached fully what had puberty and understood a witnesses. only The defense called few happened, anyone he never told because Ibold, in Hamilton Douglas police officer by it. completely he was humiliated Ohio, County, testified that he had cited 2009, however, nightmares as his in Harper marijuana possession for kill worsening, plans he made to find and encounter, Harper had During 2009. . this Simultaneously, Poandl. he was contem- mari- possession about his of lied to Ibold plating suicide and had even written Greathouse, manager at juana. Steve finally divulged note. He to his Diner, suicide testified that Queen Bee him in happened fiancée what had not serve breakfast— establishment did she told him she wanted their If eggs specifically, steak —until He then told baptized Spencer, children Catholic. wanted breakfast in an individual point Country at which he handed over parents, go his he had to Virginia, West Table, away note. He that he half mile gun and a suicide said which was about a Hawkins, the Queen out of the trial other Bee. Judith anything did not want from the mission, prison accounting manager in at Poandl’s than for Poandl to be received a car that the mission testified protect other children. 29, 1991, dated payment Edington, App’x rental United States v. 526 F. may (quoting have been connected to Poandl. Jackson 307, 319, by Virginia, a list of cars owned produced She also U.S. S.Ct. (1979)). in the mission which showed L.Ed.2d 560 “We only pickup weigh presented, mission owned vans and the evidence consider the Stone, witnesses, Finally, organist credibility Gail trucks. of or substitute our Church, Holy judgment at Redeemer testified that for that of jury.” Graham, bringing she did not remember Poandl a States v. Cir.2010) (internal
boy during guest appearance with him his quotation marks omit- ted). at the church. 20, 2013, September Both
On found Barbara and David assert- guilty charged transporting ed that were unsure of the exact date happened. interstate commerce with on which this incident The gov- 4, 1991, engage activity likely the intent to in sexual with ernment settled on August judge him. The trial sentenced him to as the exact date after discovering that it ninety imprisonment. only day months’ On October was the preached Poandl had judgment Ponadl filed a motion for Virginia during West the summer of Rule acquittal pursuant 29 of the 1991. Once the indicted Poandl, began reconstructing Federal Rules of Criminal Procedure and pursuant a motion for a new trial to Rule attempt weekend order to to craft an 33 of the Federal Rules Criminal Proce- alibi. But he never was able to craft a full alibi; most, judge dure. The trial denied both bring mo- at he was able timely appealed. question government’s tions. Poandl into timeline. Although raped Poandl denies that he
II.
time,
primary
David at
defense of
*6
contends that
con
poking
Poandl first
his
innocence consists of
holes into
evi
premised
viction was
on insufficient
Barbara and David’s assertion that Poandl
dence,
by
during
and thus the district court erred
and David left
the afternoon of
3,
“A
denying
August
pointed
his Rule 29 motion.
Rule 29
1991. Poandl
to the
sufficiency
challenge
magazine
speech
motion is
of Share
articles about his
Jones,
in
prove
the evidence.” United States v.
102 to
that he was Cincinnati into the
804,
3,
evening August
May
F.3d
“We review
of
1991. The
1991
acquittal
speech
de novo the denial of a motion for
edition announced that his
sufficiency
place August
p.m.
based on the
of the evidence.”
take
on
at 7:30
v.
August
United States
F.3d
1991 edition featured
letter
Blanchard 618
(6th Cir.2010). Despite
Harper thanking
de novo re
from Barbara
Poandl for
view,
claiming insufficiency
speech
trip
Holy
“a defendant
of
about his
to the
his
Land
very heavy
August
government attempted
the evidence bears a
burden.”
on
3. The
Abboud,
publicized
United States v.
589 establish that
events were often
(6th Cir.2006) (citation
quota
postponed
and internal
or cancelled and that sometimes
omitted).
tion marks
must affirm the
letters would be written in advance of
“We
August
countered that the
viewing
district court’s decision
‘after
events. Poandl
in
late and that it
light
published
the evidence
most favorable to
1991 issue was
prosecution,
by
rational trier of fact
a letter —also written
Barbara
featured
August
gov-
of
1991. The
could have found the essential elements
—dated
”
ernment,
response,
in
noted that Poandl
beyond
the crime
a reasonable doubt.’
impossible
have been
actu-
that it would
anyone
prove
who
testimony of
no
provided
Poandl’s
the crime.
the let-
him to commit
and that
speech,
ally attended
during
dated
whereabouts
speech
regarding
was
concerning Poandl’s
evidence
ter
1991,”
could have
of demon-
so it
falls well short
“August
that weekend
simply
the event.
strating
impossibility.
of
been written
advance
speech
give
Even if Poandl did
tending
is some evidence
Although there
3,1991,
is uncontest-
there
night August
of
innocence, that
support his claim
have
the event would
testimony that
ed
the essence
evidence does
undermine
And
p.m.
later than 10
by no
concluded
night in
during the
the indictment-that
for Poandl is that
troubling
what is most
victim. We
raped the
question, Poandl
from Ohio
deny
he drove
he does not
trier of fact
say that no rational
cannot
simply
He
August 3.
Virginia
on
West
transport-
guilty of
could have' found him
timeline.
disputes
government’s
commerce
in interstate
ing
fact,
p.m.,
might
he left after
had
intent to
him.
rape
with the
Virginia around
West
well have arrived in
Karen Fredette
a.m.,
was
time
which
III.
had arrived.
her he
testified Poandl told
that his con
next contends
Thus,
can do is shift
the most Poandl
weight of
against
manifest
viction is
afternoon
timeline from the
government’s
evidence,
court
the district
and thus
that he
evening.
It is uncontested
motion for a
denying his Rule 33
erred
per-
1991 and
on
was
Ohio
for a new trial under
new trial. “A motion
Virginia
formed mass West
Rules of Criminal
Rule 33 of
Federal
private investigator
1991. He also told the
upon the ar
may be premised
Procedure
taking
remembered”
“vaguely
that he
against
verdict
gument
jury’s
Karen
out of state.
David somewhere
of the evidence.”
weight
the manifest
remembered
testified
she
Fredette
F.3d
Hughes,
with him when he
that Poandl had a child
“Generally, such motions
finally,
And
Holy
at
Redeemer.
led mass
extraordinary cir
only in the
granted
about the al-
Harper testified
only David
preponder
evidence
cumstance where the
night. Clearly, the
leged events of that
Id. at
heavily against the verdict.”
ates
testimony.
jury believed David’s
omitted).
(internal quotation marks
592-93
*7
inconsistencies-about
Any
alleged
other
considering
weight
judge,
“A district
drove or whether
type
of car Poandl
adjudi
purposes
for
of the evidence
Queen Bee
eggs at the
David ate steak and
trial, may act as
a
for new
cating motion
Diner,
inconsequential.
instance-are
credibility
juror assessing the
a thirteenth
can tend to show
Although inconsistencies
of the evi
weight
and the
of witnesses
about events
unreliability, David testified
of the
“Our review
dence.” Id. at 593.
twenty-five years
happened
that
almost
to determin
ruling
limited
trial court’s
is
years
he
ten
old.
at a time
prior,
when
a clear and manifest
ing whether it was
ultimately
food are
Details about cars and
Id.
abuse of discretion.”
claimed alibi. Be-
irrelevant
to Poandl’s
33 motion
Poandl’s Rule
denying
light
evidence
When
cause we look at the
trial,
court noted
district
take
for a new
prosecution, we
most favorable to the
a thirteenth
to sit as
“.they
that
asked me
testimony
rape
at its
David’s
about
decid-
what
juror and to overrule
prevail
on his
face value.
order
I
juror,
claim,
thirteenth
must
Had
sat
ed.
insufficient evidence
joined
guilty
would have
them in their
charges
Indictment
hap-
crime
3rd,
finding.”
pened
Because
district court de-
on or about
1991.
motion,
government
nied Poandl’s Rule 38
our review is
does
prove
not have to
happened
limited to abuse of discretion. Our exami-
the crime
on that date
certain,
nation of the evidence in Part II dictates
but the
prove
must
happened
our conclusion that the district court did
the crime
reasonably close to
determining
abuse its discretion in
that date.
against
verdict was not
the mani-
appeal,
On
Poandl criticizes the district
of the
weight
fest
evidence. See United
allowing
court for
the jury
rely
on the
(6th
Ashworth,
836 F.2d
“on or about” instruction to consider alter-
Cir.1988).
native dates after he had responded by presenting
indictment
alibi evidence for
IV.
matter,
question.
the date in
As an initial
challenges
Poandl next
the inclu however, Poandl’s
argument
entire
is
sion
the district court’s
instructions
premised on his belief that his evidence
of an “on or about” instruction. Poandl
alibi,
was an
when it
really
is
more akin to
object
did not
to the instruction at trial.
fact,
an assertion of innocence. In
he nev-
objection
“When there is no
to an instruc
er requested an alibi instruction from the
trial,
tion at
defendant can
obtain
court,
district
and he first characterized
error,
relief if he can
plain
demonstrate
his defense as an alibi on appeal. An alibi
miscarriage
justice
and if a
would other
places
is
“defense that
the defendant at
wise result.”
Wuliger,
United States v.
the relevant time of crime in a different
(6th Cir.1992) (internal
1497, 1501
than the scene
place
involved and so re-
omitted).
quotation marks and citation
To moved therefrom
impossi-
as to render it
error,
demonstrate
a defendant must
ble for him to
guilty party.”
be the
“(1)
(2)
(3)
error,
plain,
show
an
that is
(6th ed.1990).
Dictionary
Black’s Law
affects his
rights.”
fundamental
place
away
Poandl’s evidence does not
him
Vasquez,
United States v.
Virginia;
from
he
leading
West
admits to
“If he satisfies these
Virginia
mass in West
on August
conditions, this court has discretion to cor His
simply
attempt
evidence
thus
an
error’only
seriously
rect the
if the error
question
government’s
call into
time-
fairness,
affected the
integrity,
public
or
line,
coupled
an assertion of innocence
reputation
judicial proceedings.”
within the new timeline. See United
Aaron,
United States v.
(4th
Jett,
Fed.Appx.
States v.
Cir.2001)'(calling a
“al-
alleged
defendant’s
ibi” an “assertion of innocence” when the
charged:
Poandl’s indictment
“On or
testimony
defense “consisted of
from [de-
about
...
the defendant
present
and others that was
at
fendant]
DH,
knowingly transported
year
...
a ten
*8
the restaurant at the same time
[victim]
as
in
boy,
old
interstate commerce with the
but that he did not shoot
and left
[victim]
engage
intent that such individual
in
occurred”).
shooting
the scene before the
activity
any person
sexual
for which
can be
charged with a criminal offense.” Because
Even we characterized Poandl’s de-
language,
of this “on or about”
the district
alibi, however,
argument
fense as an
his
jury:
court instructed the
heavily
fails. He relies
on
States v.
United
(6th
Now,
Henderson,
Cir.1970),
at certain
during
times
the case
about” (6th Baker, 35 F.3d Cir. banc, v. limited Henderson Johnson en sitting decision). 1994) (table so that there The district court facts of that case” “particular on ‘on or about’ by giving err the “on or per prohibition plainly is “no se not did an alibi defense jury instructions instruction. about” date.” United specific for a provided is 340, Neuroth, 339, v. V. banc). Cir.1987) (en (6th Noting that determining “rigid is formula”
there
no
next contends that the dis
Poandl
proper,
is
the en
an instruction
when such
about”
inclusion of an “on or
trict court’s
factors to serve
several
banc court listed
in
constructively amended the
instruction
an
determining whether
“guidelines” for
as
“Generally, this Court evaluates
dictment.
appropriate.
is
or about” instruction
“on
to or
constructive amendments
claims of
factors include
Id. at 341-42. These
an
de novo.”
variances from
indictment
in
indict-
allegation
specificity of
Kuehne,
States v.
United
(the
date,
the less
specific
more
ment
(6th Cir.2008). “However,
spe
where no
instruction)
about”
the “on or
appropriate
regarding
raised
a con
objection
cific
is
(the
crime
more concrete
type
and the
a variance before
amendment or
structive
crime,
or
the “on
appropriate
the less
court,
‘plain
we are limited to
district
instruction).
Id.
about”
Poandl did
appeal.”
review on
Id.
error’
Here,
attempted exclu
prosecution
any objection to a constructive
not raise
transported
sively to show that
thus re
or a variance. We
amendment
on
Harper sometime late
appeal,
On
view for
error.
1991. The
early
or
permitted
argues
with intent
transporting a minor
crime of
charge
from the indicted
vary
proof
its
in that it is “more
him is concrete
rape
the indictment
constructively amend
or
in
than more nebu
easily pinpointed
time”
convict Poandl for an
“by having
at 342.
conspiracy.
like
Id.
lous crimes
incident ever oc
if it decided the
incident
and a
specific
with a
date
dealing
When
curred,
date, and
even if on a different
crime,
that an
suggests
Neuroth
concrete
if at a
location.”
even
different
be error.
might
instruction
“on or about”
States,
361 U.S.
Stirone
United
instruction
this
Even if an “on or about”
(1960),
jury by calling
jury’s
“on the
emotions and
necting
point
asking
to the victim and
than the evidence—to decide
fears —rather
identify
with the victim. Even
Johnson,
the case.”
367 misstated the burden counsel claim on direct appeal only where by stating: adequately developed “the record is to al- proof properly low the court to assess merits here, job explained, Your the Court has Fortson, of the issue.” United States v. duties, have two and I would ask you (6th Cir.1999). 194 F.3d This is duty more. The you to consider one last case, not such and we decline to consider you your I to consider is that would ask the claim. job not to search for doubt but to seek
the truth. You seek that truth in the of the strang- same memories collective VIII. victim, justice seeking only
ers and the
finally
Poandl
argues
there
protection
and the
other children.
was cumulative error in this case. “[T]o
held, however,
As the Seventh Circuit has
obtain a new trial
on
based
cumulative
“[tjhere
wrong
referring
was
nothing
error, a defendant must show that
truth,’”
trials as
for
‘searches
effect of individually
combined
harmless
“trials are searches
truth.” United
errors
prejudicial
was so
as to render his
(7th
Harper,
States v.
662 F.3d
fundamentally
trial
unfair.” United States
nothing improper
There was
Trujillo,
376 F.3d
Cir.
about this statement.
2004). “However,
analy
cumulative-error
If a comment is determined not to be
relevant
sis is not
where no individual
“(1)
flagrant,
we will reverse
when:
ruling was erroneous.” United States v.
proof against
the defendant was not
Deitz,
(6th Cir.2009).
(2) opposing
overwhelming;
counsel ob-
(3)
conduct;
jected
the district
only potentially cognizable
errors
give
court failed to
a curative instruction.”
improper
here were the one or two
—but
Johnson,
VII. alleges
Poandl further that his constitutionally counsel rendered deficient IX. assistance in violation of his Sixth Amend rights by failing ment to make various reasons, foregoing, For the we AFFIRM rule, however, objections. general Our is Poandl’s conviction and sentence.
that “a defendant not raise ineffective assistance of counsel claims for the first MOORE, KAREN NELSON Circuit on there appeal, time direct since has not Judge, dissenting. opportunity develop been an and include pros- I because I believe that bearing in the record evidence on the mer dissent plainly improper, remarks were allegations.” its of the United States v. ecutor’s flagrant, plainly prejudicial. Woodruff, plainly (internal omitted). conviction quotation marks We would vacate Robert Poandl’s the case for a new trial. will an ineffective-assistance-of- and remand review First, argues he must—that acknowledges —as sympathy inflammatory appeals prosecu- most of the made object he did remarks, except played jurors’ for one for David tor’s asked the hurt other chil- instance. When fears that Poandl would Second, the details think about Br. at 52. Appellant dren. *12 raped by a they if had been mini- remember that the argues objected, counsel the defense priest, proof. of Id. at 58-62. mized the burden in which the district a sidebar there was that the second agree my colleagues that she was the prosecutor warned improper court was not or category of comments put to asking jurors “this close to flagrant. kid” position of this
themselves 9/19/13) (Trial (Page ID Tr. R. 68 at 80-81 I. IMPROPRIETY 806-07). give not The district court did # Preju- Inflaming the Passions A. instruction, and defense a curative dices of Jurors id. at 81 request did not one. See counsel 807). Because Poandl did not (Page ID # prosecutors that It is well established other comments he object of the obey pros- the cardinal rule that a “must prosecutori- challenges, we review his now make statements calculated ecutor cannot plain claim for error. Unit- al-misconduct prejudices of passions to incite the Boyd, F.3d ed States v. Mitchell, v. jurors.” Broom (6th Cir.2006) (internal 392, 412 F.3d 52(b) of Rule plain-error doctrine omitted). “[T]he The Supreme marks quotation correct particularly be used should prosecutors that explained has Court ” errors.... egregious United arguments their to avoid temper must Davis, 514 F.3d prosecutor] “[the unfair trials prosecutor’s statements To show ordinary of an representative not error, Poandl must show constituted controversy, but of a sover- party to' plainly improper that comments govern impar- eignty obligation whose rights. his substantial See id. and affected compelling obligation as its tially is as words, error must have “af- In other interest, all; there- govern at and whose the outcome of the district court fected fore, is not that prosecution in a criminal (internal quotation Id. proceeding.” case, justice that shall it shall win a but omitted). If Poandl meets that bur- marks States, 295 Berger done.” v. United be den, we exercise our discretion then 55 S.Ct. 79 L.Ed. U.S. fairness, affects the seriously “the error (1935). “may Accordingly, prosecutors integrity, public reputation judicial or of blows,” they may but not strike hard (internal quotation proceedings.” Id. “im- foul ones” in the form of “strike omitted). marks and, es- suggestions, insinuations proper personal knowl- pecially, assertions prosecutorial review claims of mis- We weight against edge,” “carry which much “First, we deter- stages. conduct in two they properly when should the accused improp- mine whether the statements were carry none.” Id. Second, at 669. we Boyd, er.” re- prosecutor’s whether determine reason, improper for a For that it is Id. “flagrant.” marks were imply or that the de- prosecutor to state future crimes. will commit fendant Poandl contends Broom, 413; also Bates v. 441 F.3d at see types improper arguments. two made Bell, large allegations 643-44 number of of sexual jurors that if ac- (holding priests may that comments abuse jurors Catholic cause they are to future quit, “accomplices” then to feel something stop like must do improper). murders were It is the problem particularly light — “appeal[ to the national or local com- ] coverage about the Catholic al- Church’s jurors,” munity meaning interests of Thus, leged respond. failure to given prosecutors may “urge jurors to con- extraordinarily emotional nature of this a criminal to pro- vict order defendant case, it was incumbent prosecutors on the values, community or- preserve tect civil to toe the line between hard and foul der, future lawbreaking.” or deter blows. Solivan, States v. 1152-53 argues (6th Cir.1991) (internal quotation marks *13 crossed that line par- numerous times. In omitted). Appeals community to interests ticular, way govern- Poandl cites the the particularly problematic are when the ment created and exploited its theme: controversial, prosecutor references con- trust —the trust Poandl received from the (holding events. Id. at 1153 temporaneous Harpers, the trust ex- allegedly implied drug that that comments ploited, and the trust David Harper placed jury trade would continue if the did not See, (Trial jury. e.g., in the R. at68 30 improper); convict the defendant were 9/19/13) 756). (Page Tr. ID # Barker, States v. government touched on this trust theme that it (holding was early During opening and often. state- improper prosecutor jury for the to tell the ments, prosecutor jury the told the that they acquit that if the defendant of bank government the the planned evidence to robbery, opening that is like all the banks present was “about the trust that was saying, get money, “Come on and the Poandl, gained from Bob the trust that boys, we’ll never able to convict because be them.”). Poandl, by exploited And it for the Bob the trust gov- is ” jury job’ by ernment to “exhort the to its that was broken Bob Poandl. And the ‘do and convict the defendant. requested United States trust that is ... and that’s the Young, U.S. S.Ct. trust David Harper going that to ask (1985). (Trial L.Ed.2d 1 you him.” give to R. 66 at 34 Tr. 9/16/13) 694). ID # (Page During summa- charges The criminal this case are tion, theme. government the revisited this particularly likely anger to arouse and dis- (Trial 9/19/13) R. ID (Page 68 at 27 Tr. In gust. general, involving sexual “[c]ases 753). summation, beginning # At the exert an pressure abuse almost irresistible the showed the prosecutor picture on the emotions of the bench and bar alike. ten-year-old Harper David and told the typically cases Because such turn photograph, that the time of this “[a]t relative credibilities of the defendant and trusted, he was taken a man he a man witness, however, prosecuting a strict ... ... family his trusted from his home ... appropriate prosecutorial adherence to ... Spencer, Virginia, to West where. he required to ensure a fair trial.” conduct is Parker, anally raped by was first fondled' and then Martin v. 616-17 night.” R. 68 at during Father Poandl years, In recent there has been #745). (Trial 9/19/13) (Page Tr. ID coverage extensive national of numerous Harper’s testi- allegations priests discussing that have sexu- When Barbara Catholic emphasized that ally mony, government abused children. Sexual-abuse cases boy priest her to always emotionally charged, gave priest, but the “[s]he to think about you want respect and to would also taught to she had been you want Harper. He would grown to trust David she had obey, priest asking gourage. Id. at 21 He is things.” them the same gave show 747). life, told exposed And the He has (Page your ID # trust. as a that same position you “used his to show jury that Poandl and he would ask trust, exploit gain that priest courage. trust, betray that
trust, to break that 758) (emphasis add- (Page ID # Id. at #748). ID The. (Page Id. at 22 trust.” ed). was that implication that, a result of the argued someone to be finally could trust Harper had a hard time trust- rape, hold Poandl ac- enough to courageous ID (Page id. at 28-29 ing people. See countable; to the appeal it was an 754-55). # people. ability David’s to trust restore contrast, government implied In jury’s sympa- Although appeal this jury, prob- could trust explicit, was not prejudices and — thies to convict lematically trust them improper. implications were —could Poandl: addition, made numer- And, gentlemen, I ask finally, ladies “boys,” strongly which ous references that was re- you about trust and trust boys. other that Poandl abused implied *14 Har- requested by David quested. It’s closing the throughout times At various the David-and Court per. What does prosecutor the referenced argument, David you. What does just instructed Harper. than David “boys” boys other — get any He doesn’t get out of this? summation, the of the beginning At the it fame? It’s more notori- money. Is jury the that Poandl had prosecutor told justice and ety? you He told he wanted taking boys with him when “a custom of man other children that protect to from because he wanted he traveled out of state asking you, there. That’s all he’s right stay help and to him things to teach them try gain to to this very simple. And 746) (em- (Page ID # awake.” Id. at you gets from he requested trust as he added). added, to you He “I want phasis public display. life on put to his entire Later, Id. the phrase.” remember that 755-56) (emphasis ID # (Page Id. at 29-30 jury to consider that told the prosecutor added).' prosecu- The of the implication takes that he said[ ] “Father jurors the were the tor’s remarks is that 751) (em- (Page ID # boys....” Id. at 25 to do only people Harper'could trust added). end of summa- phasis Toward the thing. the right tion, jury the “to prosecutor again told theme, argues,
Through the trust boy is to phrase ... ‘The remember only encouraged the government time, was, ‘boys it keep Every me awake.’ sympathize Harper, excuse, to but also jury That was his keep me awake.’ Id, duty jury on the to return imposed at 32 ‘boys keep me awake’....” added). them 758) because David trusted guilty verdict The (Page (emphasis ID # particular, to do it. Poandl cites tak- may that Poandl have implication was summa- portion government’s final of the trips. boys on these en and abused other tion: Moreover, argued when the believable, Harper was why Har- about you
I
to consider David
would ask
“lives.”
the case was about
implied
this? he
per.
gain
out of
What’s
756). And, in rebut-
(Page
Id. at 30
ID #
Trust and
What’s he win? Trust.
other
tal,
again referenced
Courage
government
a word I
courage,
guess.
I
use);
by quoting
drug
Poandl’s comment to
id. at
ID
(Page
children
64-65
# 552-
53) (cross-examination
investigator,
typical
“It’s
about
private
past
felonies
'
boys
trips.”
on out-of-state
me to take
police).
statements
And
continued,
called
The
closing argument
“[Poandl]
Poandl’s
emphasized
know
experience.’
it ‘the Catholic
don’t
many
jury
question
reasons for the
Har-
(Page
(Trial
what
is”
Id. at 77
ID
credibility.
per’s
See R. 68 at 51-53
803).
implication
9/19/13)
#777-79).
#
The less-than-subtle
(Page
Tr.
ID
When
expe-
was that the
this comment
“Catholic
we
propriety
prosecu-
consider the
rience” was the sexual abuse.
remarks,
tor’s
we must consider whether
prosecutor’s
defense counsel “invited” the
Although
government’s
references to
responsive remarks. United States v.
im-
“boys” and “lives”
not have been
Henry, 545 F.3d
isolation, they
proper
problematic
11-12,
(citing Young,
The jury Harper tor told the that David was prosecutor explaining the was that “justice and to asking protect them for for Harper’s testifying David motivation other children from Id. at 30 [Poandl].” protect response was to other children in 756). Thus, (Page prosecutor’s ID # the numerous, to defense counsel’s attacks on boys remarks about other and the need to Harper’s credibility. Appellee Br. at 54- protect improper. other children were credibility a criti- Harper’s 56. David cal issue at trial. He was the witness B. The Golden Rule trial alleged sexual abuse. Poandl’s extraordinary argues
counsel an Poandl also that the spent amount jury sympathize to questioning encouraged time about the David’s memory unsavory of his and as- David and vouched for specifics 9,n. 58. his.background might credibility. Appellant make Br. at 54 pects of See, ... e.g., Attempts him credible. R. 62 at 51-54 “to ensure a conviction less 9/17/13) 539-42) (Trial appealing jury ID # to the emotions of the (Page Tr. (cross-examination sympathy to elicit for the vie- Harper’s attempting about David “(1) Gibson, Moore v. 195 tors: to which the improper. degree
tim” are conduct 1152, 1171-72 jury or remarks tended to mislead the or F.3d (2) defendant; they prejudice the whether myriad sympathy for appeals There are (3) extensive; were isolated or whether Harper throughout the record. they deliberately accidentally were or put example, which the egregious most (4) jury; before the the overall court noted was “this close to ask- district strength against of the evidence the defen- jurors put to themselves in the ing Boyd, dant.” F.3d at 669 (citing Unit- kid,” position jurors of this asked the to Francis, ed States v. [they] when were ten.” R. 68 “think about Cir.1999)). Even prosecutor’s when the (Trial 9/19/13) 806). (Page at 80 Tr. ID # flagrant, comments are not we re- particular, asked if objected, proof verse defense counsel jurors they think about what would guilt overwhelming, was not and the raped remember if had been at the give proper trial court did not of ten: age Francis, limiting instruction. 170 F.3d at you about when were ten. What [T]hink you you stuck out to were somewhere? ... importantly, More would it be the There is .little the govern- doubt you raped room that in? Would ment’s insinuation that Poandl abused or you that what remember? be Would the prejudicial would abuse others was grown your fact that a man who mother given prevalence of media cov- your you taught father to trust and erage allegations of numerous of sexual taught you obey, you remem- by priests. Majority abuse concludes ber those details? prosecutor’s that the remarks were “isolat- ed,” appeals put flagrant. Id. These for the them and therefore not To the contrary, extensive; Harper’s position selves David as a ten- the remarks were “lives,” year-old boy government “boys,” violations of the used words “custom,” time,” “golden “every rule.” Golden-rule comments are or “children” at “universally condemned least thirteen times. It [they] apparent en- is also couragef .‘depart from neutral planned say ] some ity and to decide the case on the of its basis of remarks because both personal prosecutors interest and bias rather than on the trust theme and the used ” Harper’s evidence.’ Lovett ex rel. Lovett v. statements about trust in the *16 Co., Moreover, part Union Pac. R.R. 201 F.3d 1083 of that theme. even if the (quoting Spray-Rite government plan Serv. did not to ask Co., Corp. they v. Monsanto to think about what (7th Cir.1982)); situation, Harper’s 1246 see v. remember in that com- also Ross Pine (6th Cir.2013). da, Fed.Appx. obviously improper; ment is there are ad- Thus, prosecutor’s im monitions to avoid that line of argumenta- comments were proper. trial-advocacy in every tion book on the Doug Norwood, See, market. e.g., Proseou-
II. FLAGRANCY
Closing Argument
torial
Misconduct
(2014)
”);
§
We will not reverse a
(“Using
conviction because
12.5
the ‘Golden Rule’
of improper comments unless the com- Fred
4 Lane Goldstein Trial Tech-
Lane,
(3d
Davis,
ed.2014);
flagrant.
§
ments were also
23:33
75A Am.Jur.2d
nique
(2015). Thus,
govern-
§
at 613. To determine whether the com- Trial
“flagrant,”
prejudicial,
ments
we consider four fac- ment’s
remarks were
extensive,
church,
and deliberate. United
Catholic
or because
thought
Carter,
boys,
v.
Poandl abused other
or out of fear
that Poandl would abuse other children.
question is whether
The more difficult
reason,
For that
I cannot conclude that the
strength
against
of the evidence
weight
cumulative
of the evidence was so
improp-
Poandl neutralizes the harm of the
strong to be sure that
the prosecutor’s
strength
er
of the evi-
comments.
inflammatory
boys,
remarks about other
guilt depended entirely
dence of Poandl’s
entreaty
courage,
show
Harper’s credibility
on David
credi-
—the
children,
request
protect
other
bility
Spencer,
of his claim that he went to
the violation of the Golden Rule did not
Virginia,
West
and his assertion that
affect the
or integrity
pro-
fairness
government
him. The
raped
of-
ceedings.
ignored
its
Harper’s
fered evidence to corroborate
“duty to refrain from improper methods”
of events. The Fredettes testified
version
and struck “foul blows.” Berger, 295 U.S.
a boy accompanied
Spencer.
Poandl to
at
prosecutor’s
when it was outside and before din- with the square
ner does not evidence that' speech
Poandl delivered a at 7:00 in the
evening August on 1991. David attending
never mentioned be- speech
fore embarking trip Virgi- West provides
nia. Poandl even evidence that
Barbara attended the event. Her Poandl,
“August thanking 1991” letter to speech, him for his references details from America, UNITED STATES seriously considering the talk: “We are Plaintiff-Appellee, your challenge pilgrims.” to be R. 94 at (Def.Ex.94-D) 1245). ID (Page # pointed Poandl’s counsel also to numerous KEMMERLING, Joseph Defendant- Harper’s story. inconsistencies Appellant. Moreover, nobody could corroborate the No. 15-5092. sexual abuse—as is often the case with this type of crime. *17 Appeals, Court - Although jury inherently verdicts Sixth Circuit. opaque, thing juiy one is clear: be- July Harper. lieved David What we cannot determine, however, is whether the
found him credible because felt obli-
gated guilty sympa- to find Poandl out of
thy Harper, anger for David or at the