United States Court of Appeals For the First Circuit
No. 19-1967
UNITED STATES OF AMERICA,
Appellant,
v.
DONNA M. ACKERLY, a/k/a DONNA KULMACZEWSKI,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Chief Judge, Selya and Barron, Circuit Judges.
Stephen E. Frank, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellant. Michael Kendall, with whom Yakov Malkiel and White & Case LLP were on brief, for appellee.
November 24, 2020 SELYA, Circuit Judge. A jury convicted defendant-
appellee Donna M. Ackerly of three counts charging her with wire
fraud, honest services wire fraud, and conspiracy to commit both
types of wire fraud. The district court granted Ackerly's motion
for a new trial upon finding what it deemed to be a violation of
the Confrontation Clause. See U.S. Const. amend. VI. Concluding,
as we do, that the government has failed to show reversible error,
we affirm the grant of a new trial.
I. BACKGROUND
We begin by rehearsing the relevant facts and travel of
the case. On August 10, 2016, a federal grand jury sitting in the
District of Massachusetts indicted Ackerly, along with Charles
Garske, Richard Gottcent, and Michael Sedlak, on charges of wire
fraud, honest services wire fraud, and conspiracy to commit both
types of wire fraud. See 18 U.S.C. §§ 1343, 1346, 1349. The
indictment alleged that the defendants were employees of
Georgeson, Inc., a proxy-solicitation firm that advises publicly
traded companies on matters requiring shareholder approval; that,
between September 2007 and March 2012, the defendants conducted a
fraudulent scheme, which consisted of bribing an employee of
Institutional Shareholder Services, Inc. (ISS), a firm that
provides voting advice to shareholders, in exchange for nonpublic
information about ISS's proxy-voting advice; and that the
- 2 - defendants concealed the scheme by falsely invoicing Georgeson's
clients for at least a portion of the cost of the bribes.
Trial began on February 26, 2018, before a jury of twelve
(which had been empaneled along with two alternate jurors). United
States v. Garske, 939 F.3d 321, 326 (1st Cir. 2019), cert. denied,
140 S. Ct. 1121 (2020). During the trial, the district court
excused three jurors for various reasons. See id. Although
Garske, Gottcent, and Sedlak consented to proceed with a jury of
fewer than twelve, Ackerly withheld her consent. See id. at 326-
27.
Ackerly's refusal had a domino effect: the government
refused to proceed with a jury of eleven unless all four defendants
acquiesced. See id. at 326. Faced with this impasse, the district
court declared a mistrial. See id. at 327.
Garske, Gottcent, and Sedlak responded to the mistrial
by moving to dismiss the indictment against them on Double Jeopardy
grounds. See id. On August 16, 2018, the district court ruled
that the Double Jeopardy Clause barred the government from retrying
Garske, Gottcent, and Sedlak and dismissed the indictment against
them with prejudice. See United States v. Ackerly, 323 F. Supp.
3d 187, 200-03 (D. Mass. 2018). Following the government's appeal,
we reversed. See Garske, 939 F.3d at 327, 336.
While that appeal was pending, the government proceeded
to retry Ackerly. See id. at 336 n.4. Ackerly's separate trial
- 3 - began on January 7, 2019. In its opening statement, the government
told the jury that the evidence would show that an ISS employee,
"a man named Brian Zentmyer . . . secretly passed information about
how ISS's clients were voting to one of Ackerly's colleagues at
Georgeson, Michael Sedlak, and Sedlak passed that information on
to Donna Ackerly and others." Although Zentmyer had testified to
that effect in the first trial and the government included him on
its witness list for Ackerly's separate trial, the government chose
not to call him as a witness the second time around.
In his place, the government called a cooperating
witness, Keith Haynes. Haynes — like Ackerly — was a senior
account executive at Georgeson. Haynes testified that he
participated in a scheme to bribe Zentmyer with expensive tickets
to sporting events and concerts in exchange for confidential
information. He also testified that others at Georgeson were
involved in the scheme. Along the way, Haynes recounted how he
received emails from Sedlak containing confidential voting
information and how he falsely billed Georgeson clients for some
of the cost of the tickets.
On the last day of Haynes' testimony, defense counsel
cross-examined Haynes about his decision to plead guilty. Haynes
responded that, at the time of his decision, he was unaware of
provisions in ISS contracts that appear to presume voting
- 4 - information to be nonconfidential unless an ISS client specified
otherwise.
On redirect examination, the government sought to
address Haynes' characterization of his knowledge at the time of
his plea. The following exchange transpired:
Q. You were asked what you were aware of at the time
you chose to plead guilty, correct?
A. Correct.
Q. You were aware -- Mr. Kendall asked you about Brian
Zentmyer's cooperation agreement?
A. About --
Q. Do you recall being asked whether Brian Zentmyer
was cooperating with the government?
A. Yes.
Q. You were aware at the time you pled guilty that Mr.
Zentmyer had also pled guilty to being involved in
a conspiracy --
MR. KENDALL: Objection.
Q. -- to steal confidential ISS information in
exchange for bribes?
The court sustained the objection and instructed the jury that
"the admitted guilt of others really is not relevant to this
specific defendant's guilt or non-guilt, as the case may be."
- 5 - Ackerly nonetheless moved for a mistrial at the next
break in the proceedings. The court denied the motion, suggesting
that its corrective instruction following defense counsel's
objection, combined with a reiteration in final instructions,
would suffice to ward off prejudice. On the sixth day of trial,
Ackerly renewed her motion for a mistrial. In a supporting brief,
she argued that the government had violated the Confrontation
Clause by "expos[ing] the jury to Mr. Zentmyer's plea through a
prosecutor's comment, not through testimony." Denying this
motion, the district court indicated that it had "revised the jury
instructions on that point to try to more directly address the
issue [Ackerly] raised in the motion."
The case went to the jury on the following day. True to
its word, the court instructed the jury that "[a]rguments and
statements by lawyers . . . are not evidence" and that "[q]uestions
to witnesses are not evidence." Getting down to specifics, the
court explained that "Mr. Haynes and anyone else who may have pled
guilty may be presumed to have acted after an assessment of their
own best interest, for reasons that are personal to them, but that
fact has no bearing on Ms. Ackerly's guilt or innocence." Guilt
by association, the court said, cannot support a conviction.
After the jury charge, Ackerly requested an instruction
that the government had "violated [her] constitutional rights by
- 6 - referring to [Zentmyer's] plea." The court denied that request,
insisting that its curative instructions had defused any issue.
After deliberating, the jury convicted Ackerly. She
subsequently moved, in the alternative, for a judgment of acquittal
or for a new trial. The district court granted her motion for a
new trial, and this timely appeal ensued. We have jurisdiction
under 18 U.S.C. § 3731.
II. ANALYSIS
The issue before us is whether the district court abused
its discretion in granting Ackerly's motion for a new trial. In
arguing the affirmative, the government mounts two principal
contentions. First, the government contends that the
Confrontation Clause is not implicated as a matter of law because
the testimonial statement that the district court found
prejudicial was never admitted into evidence. Second, the
government contends that a single unanswered question, followed by
multiple curative jury instructions, could not — as a matter of
law — have violated the Confrontation Clause. And if either of
these contentions is correct, the government says, it would mean
that the district court applied too strict a standard of harmless-
error review. Compare Chapman v. California, 386 U.S. 18, 24
(1967) (holding that an error of constitutional dimension can only
be harmless if it is shown to be "harmless beyond a reasonable
doubt"), with Kotteakos v. United States, 328 U.S. 750, 776 (1946)
- 7 - (holding that a non-constitutional error is harmless unless the
error is shown to have had a "substantial and injurious effect or
influence in determining the jury's verdict"). We evaluate each
contention in turn.
A. Statement Not in Evidence.
As we approach the government's first claim of error, a
threshold question looms. Ordinarily, we review a district court's
grant of a new trial for abuse of discretion. See United States
v. Theodore, 468 F.3d 52, 56 (1st Cir. 2006). Here, the government
entreats us to follow suit. Ackerly demurs, maintaining that the
government is now attempting to advance an argument that it never
advanced below. On that basis, Ackerly asks that we review the
government's claim solely for plain error. See United States v.
Madsen, 809 F.3d 712, 717 (1st Cir. 2016). We start, therefore,
by evaluating whether the government "raise[d] [the issue]
squarely in the lower court" so as to avoid the daunting plain
error standard. United States v. Lilly, 13 F.3d 15, 18 (1st Cir.
1994); see also United States v. Taylor, 54 F.3d 967, 972-73 (1st
Cir. 1995) (explaining that under plain error doctrine, "appellate
courts will notice unpreserved errors only in the most egregious
circumstances").
The record tells the tale. The motion for a new trial
was not the first time that Ackerly raised the Confrontation Clause
as an objection to the prosecutor's question; she first articulated
- 8 - the argument in a written motion for a mistrial on the sixth day
of the trial. She again articulated the argument after the
district court had charged the jury, this time in the form of a
request that the jury instructions be amended to state that the
government had violated her confrontation rights. The district
court rejected both proffers without awaiting the government's
response. Consequently, the government's opposition to Ackerly's
motion for a new trial was the first opportunity for the government
to meet Ackerly's Confrontation Clause argument head-on.
In that motion, Ackerly set out her Sixth Amendment claim
with conspicuous clarity. Specifically, she asseverated that "the
government's disclosure of Zentmyer's plea violated her Sixth
Amendment rights" because an "alleged coconspirator's guilty plea
is a testimonial fact that cannot be admitted without an
opportunity for cross-examination." She also disputed the
effectiveness of the district court's curative instructions. All
in all, Ackerly made it luminously clear that she objected to the
prosecutor's question on Confrontation Clause grounds.
Responding, the government stated only that "Ackerly's
contention that the government 'improperly disclosed Zentmyer's
guilty plea' . . . is without merit." In this regard, it reminded
the court of the conclusions that the court had reached when
Ackerly raised the same objection earlier in the case: that "the
government's question 'was a brief one, and [the court's]
- 9 - instructions adequately addressed it.'" The government went on to
argue that "to the extent its question was error, that error was
arguably invited" by Ackerly's counsel's statements suggesting
that, when pleading guilty, Haynes was unaware that Zentmyer had
not committed a crime. In any event, the government said, the
error "was cured" by the court's instructions.
Taken as a whole, the most generous configuration of the
government's reasoning does not come within a country mile of a
denial that the prosecutor's question is a testimonial fact that
could not be revealed to the jury absent an opportunity for
confrontation. Although the government argued that the question
was not "improper," its rationale for that proposition never dealt
with whether asking the question presented a potential
Confrontation Clause issue. Instead — as the district court
observed when granting the motion for a new trial — the
government's response "essentially concede[d] the constitutional
violation."
The government counters that its arguments below were
adequately responsive under the ordinary new-trial standard
because they denied that the government's actions prejudiced
Ackerly. See United States v. Andrade, 94 F.3d 9, 14 (1st Cir.
1996) ("The remedy of a new trial . . . is warranted 'only where
there would be a miscarriage of justice' or 'where the evidence
preponderates heavily against the verdict.'" (quoting United
- 10 - States v. Indelicato, 611 F.2d 376, 386 (1st Cir. 1979))). In its
opposition to Ackerly's motion, it denied that the question
"irretrievably poisoned the proceedings," that the question
"caused a miscarriage of justice," or that the jury considered the
question in its deliberations. But whether the question was
prejudicial is a materially different issue from whether the
question violated Ackerly's constitutional rights. Cf. United
States v. Earle, 488 F.3d 537, 542 (1st Cir. 2007) ("If a
constitutional error has occurred, we must order a new trial unless
the government has shown that any error was 'harmless' beyond a
reasonable doubt."). And the government never contested the latter
issue before the district court.
The short of it is that the specific argument that the
government presses on appeal — that statements not admitted into
evidence cannot, as a categorical matter, work a Confrontation
Clause violation — is nowhere to be found in the record below.
The unvarnished fact is that, in its opposition to Ackerly's new-
trial motion, the government made no reference to the Confrontation
Clause at all. The government's orphaned claim of error is,
therefore, unpreserved. Cf. Lilly, 13 F.3d at 17-18 (finding claim
of error unpreserved when "current version" of party's argument
differed from that presented to district court). Accordingly, we
proceed to evaluate it under the plain error rubric. See id. at
18 n.6.
- 11 - To prevail on plain error review, the government must
demonstrate "(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected [its] substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Duarte, 246
F.3d 56, 60 (1st Cir. 2001). Under this standard, the proponent
of "plain error must carry the devoir of persuasion as to all four
of these elements." United States v. Pinkham, 896 F.3d 133, 136-
37 (1st Cir. 2018).
In this instance, the government cannot clear the second
step of the "high" plain error "hurdle." United States v.
Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). At that step, the
government must show that the claimed error is "clear" or
"obvious." United States v. Olano, 507 U.S. 725, 734 (1993). And
to come within that taxonomy, the error must offend established
law. See United States v. Bennett, 469 F.3d 46, 50-51 (1st Cir.
2006) (discerning no clear or obvious error in light of conflicting
case law). In other words, only an "indisputable" error warrants
correction on plain error review. United States v. Jones, 748
F.3d 64, 69-70 (1st Cir. 2014). It is against this backdrop that
we proceed to examine the nature of the claimed error.
The government does not gainsay that a guilty plea
constitutes a testimonial statement under Crawford v. Washington,
541 U.S. 36 (2004). In Crawford, the Supreme Court held that the
- 12 - Confrontation Clause bars the admission of a witness's testimonial
statement against a criminal defendant unless the witness is
unavailable, and the defendant had a prior opportunity to cross-
examine the witness. See id. at 53-54. A guilty plea is the kind
of statement that we previously have found to fall within the
compass of the Confrontation Clause. See United States v. Ofray-
Campos, 534 F.3d 1, 23 (1st Cir. 2008) ("[W]here a missing co-
defendant does not testify, 'it is generally accepted that absent
agreement, courts and prosecutors generally are forbidden from
mentioning that a co-defendant has either pled guilty or been
convicted.'" (quoting United States v. Carraway, 108 F.3d 745, 756
(7th Cir. 1997))).
Even so, the parties diverge in their interpretations of
both Crawford and the reach of the Confrontation Clause. In the
government's view, the core function of the Confrontation Clause
is to foreclose the admission of testimonial statements when the
defendant has not been afforded an opportunity to cross-examine
his accuser. Under this view, "the Confrontation Clause is
implicated only where testimonial evidence is actually admitted
against the accused at trial." Ackerly, though, espouses a more
expansive reading. She submits that the Confrontation Clause bars
a criminal jury from considering statements by unconfronted,
absent, or silent witnesses. As relevant here, Ackerly says that
the Confrontation Clause not only prohibits the admission of
- 13 - unconfronted testimonial statements but also prohibits bringing
such statements to the jury's attention, regardless of whether
they are actually admitted into evidence.
On plain error review, we need not plot the exact
boundaries of the prophylaxis afforded by the Confrontation
Clause. Instead, it is enough for us to determine whether the
government's bright-line rule is one that is firmly settled in the
case law, such that the district court's purported error — finding
a constitutional violation even though an errant testimonial
statement was not admitted into evidence — was plain. We turn to
that determination.
Pre-Crawford case law suggests that statements not in
evidence sometimes can trigger a violation of a defendant's right
to confrontation. In Douglas v. Alabama, 380 U.S. 415 (1965), the
prosecution called to the witness stand the defendant's convicted
co-conspirator. Id. at 416. Because the co-conspirator intended
to appeal his conviction, he exercised his Fifth Amendment right
against self-incrimination and declined to respond to questions
about the alleged crime. See id. Treating the witness as hostile,
the prosecutor proceeded to cross-examine him. See id. The
prosecutor began to read the witness's purported confession in the
presence of the jury and paused every few sentences to ask the
witness if he had made the recited statements. See id. Still
invoking his privilege, the witness declined to answer these
- 14 - questions. See id. Although the document that embodied the
confession "was not offered in evidence," id. at 417, and both the
prosecutor's reading of the document and the witness's refusal to
answer "were not technically testimony," id. at 419, the Supreme
Court concluded that the defendant's inability to cross-examine
the witness deprived him of his right to confrontation because the
prosecutor's "reading may well have been the equivalent in the
jury's mind of testimony that [the witness] in fact made the
statement," id.
Shortly after Douglas was decided, we interpreted the
Confrontation Clause to bar the government from bringing to the
attention of the jury, in the form of questions, certain
information not admitted into evidence. See Robbins v. Small, 371
F.2d 793, 796 (1st Cir. 1967). There, the prosecution called a
witness who had signed a statement implicating the defendant. See
id. at 794. The prosecutor proceeded to ask the witness leading
questions about his statement, but he refused to answer on Fifth
Amendment grounds. See id. Following the defendant's conviction
in a state court, we noted on habeas review that the answer to
whether this exchange violated the Confrontation Clause
"depend[ed] on whether the prosecutor's conduct in the
interrogation of a witness at the trial deprived [the defendant]
of his right of cross-examination." Id. at 793. Applying Douglas,
we concluded that the proceedings contravened the defendant's
- 15 - right to confrontation because the prosecutor, through a series of
leading questions, "indirectly but effectively brought to the
jury's attention the substance of a statement that was not in
evidence and, therefore, not subject to cross-examination." Id.
at 795.
Decades later, the Supreme Court decided Crawford and
"depart[ed] from prior Confrontation Clause precedent in [some]
respects." Williams v. Illinois, 567 U.S. 50, 70 (2012). But it
is not readily apparent that Crawford abrogated Douglas. See
Crawford, 541 U.S. at 57 (citing Douglas with approval for the
proposition that the opportunity to cross-examine is dispositive).
The upshot is that it remains unclear whether Crawford drew a line
to exclude from Confrontation Clause protection testimonial
statements not admitted into evidence but nonetheless communicated
to the jury. We explain briefly.
The unconfronted statement before the Court in Crawford
had been admitted into evidence under the so-called indicia-of-
reliability test previously announced in Ohio v. Roberts, 448 U.S.
56 (1980). See Crawford, 541 U.S. at 40. The question of whether
a statement not admitted into evidence might violate the
Confrontation Clause was not before the Court. Rather, the Court
was asked to determine only whether the admission of the statement
was consistent with the Confrontation Clause. The Court held that
the Confrontation Clause reflects a concern with "testimonial"
- 16 - statements, id. at 51-52, and that such statements are not
admissible unless the witness is unavailable to testify and the
defendant had a prior opportunity for cross-examination, id. at
53-54. These holdings do not inform a court in deciding whether
a statement that was never admitted into evidence can — or cannot
— violate a defendant's right to confrontation.
Here, moreover, the government concedes that the
prosecutor's question constituted a testimonial statement. Thus,
the government must show, at a bare minimum, that not all hearsay
testimonial statements demand a prior opportunity for
confrontation. The government offers not a shred of authority in
this respect, and Crawford does the government no favors. See id.
at 68 ("Where testimonial evidence is at issue, . . . the Sixth
Amendment demands . . . unavailability and a prior opportunity for
cross-examination."); id. at 68-69 ("Where testimonial statements
are at issue, the only indicium of reliability sufficient to
satisfy constitutional demands is the one the Constitution
actually prescribes: confrontation."); cf. Jones, 748 F.3d at 69-
70 (concluding that because defendant "does not cite — and we
cannot find — any case . . . deciding [the issue] in his favor .
. . we are worlds away from a plain error").
The government tries to prop up its proposed bright-line
rule by reliance on the Supreme Court's post-Crawford decision in
Williams. Williams, 567 U.S. at 50. But Williams is at best
- 17 - peripheral to the rule for which the government is advocating in
this case. There, the prosecution called an expert witness to
testify about a forensic report not admitted into evidence. Id.
at 61-62. The Court found no Confrontation Clause violation
because the expert referenced the report to offer a basis for her
expert opinion, and not to show the truth of the matter asserted.
See id. at 71. The government here suggests that the fact that
the expert report targeted as testimonial hearsay in Williams was
not introduced into evidence, see id., was "significant" in the
Court's rejection of the defendant's Confrontation Clause claim.
But even assuming, for argument's sake, that the report's non-
introduction into evidence was a significant factor — as opposed
to a dispositive one — that assumed fact would not establish the
categorical bar that the government seeks to have us impose. The
more salient fact, we think, is that in Williams — just as in
Crawford — the Court was not tasked with evaluating the
applicability of the Confrontation Clause to statements not in
evidence. See id. at 56-57. The critical circumstance in Williams
was that the out-of-court statement was not admitted for its truth
and, therefore, fell categorically outside the protection of the
Confrontation Clause.1 See id. at 72; see also id. at 79 ("[T]he
1 Because the Williams Court considered the likelihood that the trier of fact would mistakenly take an inadmissible unconfronted testimonial statement as proof of the matter asserted, see Williams, 567 U.S. at 72-73 ("[I]f petitioner had
- 18 - Confrontation Clause applies only to out-of-court statements that
are 'use[d]' to 'establis[h] the truth of the matter asserted.'"
(quoting Crawford, 541 U.S. at 59-60 n.9)).
Consistent with this view of the Court's reasoned
Confrontation Clause jurisprudence, post-Crawford cases in this
circuit have not read Supreme Court precedent to foreclose a
Confrontation Clause violation simply because an unconfronted
statement was not admitted into evidence. In Ofray-Campos, for
example, the trial judge, in response to a jury note, disclosed to
the jury the convictions of the defendant's alleged co-
conspirators. 534 F.3d at 15-16. Although that disclosure was
not in evidence, we ruled that the jury's exposure to this
information violated the defendant's right to confrontation. See
id. at 19. Nearly a decade later, we described that principle as
well-established. See United States v. Morosco, 822 F.3d 1, 12
(1st Cir. 2016) ("[C]aselaw has long recognized that a jury's
exposure to extrinsic information deprives a criminal defendant of
. . . his right of confrontation." (internal quotations omitted)).
That this circuit has long recognized Confrontation
Clause protection against extrinsic information disclosed to
elected to have a jury trial . . . there would have been a danger of the jury's taking [the expert's] testimony as proof [of the matter asserted]."), Williams seems to lend credence to Ackerly's contention that an improper testimonial statement communicated to a criminal jury — whether admitted into evidence or not — may support a Confrontation Clause claim.
- 19 - juries, whether admitted into evidence or not, strongly suggests
that the government's bright-line rule is open to question. Adding
to the plausibility of this suggestion is our conclusion that no
controlling case law firmly establishes that only statements
admitted into evidence can violate the Confrontation Clause. On
plain error review, these uncertainties are sufficient to tip the
balance. We hold that to the extent the district court may have
erred in treating the prosecutor's improper statement as working
a Confrontation Clause violation — a matter that we do not decide
— that error was neither clear nor obvious. And because the
government has failed to carry the devoir of persuasion with
respect to the second element of the plain error construct, plain
error is plainly absent. See Pinkham, 896 F.3d at 136-37.
B. Effect of Subsequent Instructions.
The government's second claim of error is that a single
improper question, never answered and which was followed by
curative instructions from the district court, could not amount to
a violation of the Confrontation Clause. Once again, some stage-
setting is useful.
The district court reached two distinct conclusions in
ordering a new trial. First, the court concluded that the
prosecutor's improper question violated Ackerly's Sixth Amendment
right to confrontation. Second, the court applied the defendant-
friendly harmlessness standard applicable to claims of
- 20 - constitutional error, see Chapman, 386 U.S. at 24; Earle, 488 F.3d
at 542, and concluded that the discerned violation was not harmless
beyond a reasonable doubt.
During oral argument before this court, the government
waived any objection to the district court's determination that
the "harmless beyond a reasonable doubt" standard was not
satisfied. But the government says that what transpired in this
case did not sink to the level of a constitutional violation (and
that the harmlessness standard the district court applied was
therefore incorrect) because, inter alia, the prosecutor asked and
withdrew a single question before the witness could answer it and
the judge issued curative instructions.
Ackerly argues that the government's contention — that
no error of constitutional dimension can result when the witness
did not have an opportunity to answer the prosecutor's "isolated
question" and curative instructions followed — is new on appeal.
Accordingly, Ackerly asks that we review the government's second
claim, like its first, only for plain error. See Madsen, 809 F.3d
at 717. The government responds that its second claim is not new
and, thus, asks that we review it for abuse of discretion. See
Theodore, 468 F.3d at 56.
The government's boast that it preserved this claim of
error below is belied by the record. In support, the government
insists that the argument it now presents originated in the same
- 21 - language that we assessed in connection with its first claim of
error. This is wishful thinking: the government's reasoning below
did not posit that the district court's curative instructions
eliminated any possibility of a constitutional violation but,
rather, posited only that the curative instructions nullified any
prejudicial effect attributable to the improper question. And it
is crystal clear that the government's specific argument — that a
single question the witness did not have an opportunity to answer,
immediately followed by curative instructions, did not as a matter
of law violate the Confrontation Clause — was not made (or even
hinted at) in the court below. We therefore review the
government's second claim of error only for plain error.
Here, too, we start — and end — with the second step of
the plain error construct. The government, in essence, contends
that a single unanswered question presenting an unconfronted
testimonial statement was an infraction too minimal to rise to the
level of a constitutional violation when curative instructions
followed the question. But the government's suggestion that the
number of questions from the prosecutor factors into whether he
violated a defendant's right to confrontation and that a single
question is necessarily more innocent than a double whammy is
simply not supported by the case law. See United States v.
Marquez, 898 F.3d 1036, 1047-48 (10th Cir. 2018) (finding that "a
single question and a single answer" violated the defendant's right
- 22 - to confrontation); United States v. Spriggs, 591 F. App'x 149,
151-52 (3d Cir. 2014) (finding constitutional error because the
"single statement" at issue "was testimonial"); see also Ryan v.
Miller, 303 F.3d 231, 248-249 (2d Cir. 2002) ("[I]t is well
established in this Circuit that lawyers may not circumvent the
Confrontation Clause by introducing the same substantive testimony
in a different form," id. at 248). Critically, the Supreme Court's
watershed decision in Crawford does not turn in any way on the
number of times that a prosecutor insults a defendant's
Confrontation Clause rights. See Crawford, 541 U.S. at 68 ("Where
testimonial evidence is at issue, . . . the Sixth Amendment demands
. . . unavailability and a prior opportunity for cross-
examination."). Rather, Crawford suggests that the substance of
the statement at issue, namely, whether that statement is
testimonial, can alone trigger Confrontation Clause protections.
Where, as here, the government does not dispute that a statement
was testimonial, a fair reading of Crawford supports a conclusion
that a single unconfronted testimonial statement may work a
violation of a defendant's right to confrontation.
What is more, the notion that curative instructions may
downgrade a constitutional violation to some lesser status
conflates the question of whether an error occurred with the
question of whether the error was prejudicial. See Earle, 488
F.3d at 542. Effective curative instructions surely may lessen
- 23 - the deleterious impact of an unconfronted testimonial statement,
but they do not, as a matter of law, preclude a court from finding
a Confrontation Clause violation. See, e.g., United States v.
Maher, 454 F.3d 13, 23 (1st Cir. 2006) (finding Confrontation
Clause violation when "testimony was immediately followed by a sua
sponte [curative] instruction"). It is the unconfronted
testimonial statement that comprises the Confrontation Clause
violation, and curative instructions cannot suffice to put the
genie back into the bottle.
In mounting this novel argument, the government relies
heavily on Greer v. Miller, 483 U.S. 756 (1987). The government
tells us that Greer stands for the proposition that a court's
curative instructions ensure that the jury does not consider
statements presented in questions in rendering its verdict. That
is true as far as it goes — but it does not take the government
very far.
The government overreaches when it says that such
instructions "eliminate any possibility of a constitutional
violation to begin with." This gloss misreads Greer.
Greer built upon an earlier case, in which the Supreme
Court held that it would be "fundamentally unfair and a deprivation
of due process to allow the arrested person's silence to be used
to impeach an explanation subsequently offered at trial" where
Miranda warnings communicate the right to that silence. Doyle v.
- 24 - Ohio, 426 U.S. 610, 618 (1976). Relying on this rationale, the
Greer Court held that a Doyle violation occurs only when the trial
court "permit[s] the prosecution during trial to call attention to
[the defendant's] silence." Greer, 483 U.S. at 763. The sequence
of events in Greer — "a single question, an immediate objection,
and two curative instructions" — forestalled a finding of the
requisite attention. See id. at 766.
Because the claim in Greer was one of general "unfairness
as to make the resulting conviction a denial of due process," id.
at 765, an examination of whether an error occurred entailed a
different standard than the one applicable here. When a defendant
complains that the prosecutor's conduct rendered the trial
fundamentally unfair, a court must examine "the entire
proceedings" including any "special pains" taken by the trial court
to correct errors. See Donnelly v. DeChristoforo, 416 U.S. 637,
643-44 (1974) (determining whether "remarks, in the context of the
entire trial, were sufficiently prejudicial to violate
respondent's due process rights," id. at 639); Greer, 483 U.S. at
766; see also Hardy v. Maloney, 909 F.3d 494, 501 (1st Cir. 2018).
By contrast, when — as in this case — "specific guarantees of the
Bill of Rights are involved, [a court must take] special care to
assure that prosecutorial conduct in no way impermissibly
infringes them." Donnelly, 416 U.S. at 643. Consequently,
curative instructions do not wipe the prosecution's slate clean
- 25 - when the Sixth Amendment right to confrontation is implicated.
See Maher, 454 F.3d at 21-23. So viewed, it is apparent that no
applicable case law forbade the district court, as a matter of
law, from concluding that an error of constitutional dimension had
occurred. It follows — as night follows day — that we cannot find
plain error. See Jones, 748 F.3d at 69-70.
III. CONCLUSION
We need go no further. The district court found that,
in the circumstances at hand, the prosecutor's improper question
cannot be said to be harmless beyond a reasonable doubt. The
government has challenged the standard of harmlessness employed by
the district court, but it has eschewed any challenge to the
substance of the district court's finding. Given our conclusion
that no plain error inhered in the district court's choice of the
applicable standard of harmlessness, the judgment of the district
court must be
Affirmed.
- 26 -