[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 22, 2000 No. 98-5923 THOMAS K. KAHN ________________________ CLERK
D. C. Docket No. 98-00442-CR-EBD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAMION ANTHONY CAMPBELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida _________________________ (August 22, 2000)
Before COX, GODBOLD and MESKILL*, Circuit Judges.
PER CURIAM:
Damion Anthony Campbell appeals his convictions for importation of cocaine,
* Honorable Thomas J. Meskill, U.S. Circuit Judge for the Second Circuit, sitting by designation. in violation of 21 U.S.C. § 952(a), and possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a). We affirm.
I. Facts1 and Procedural History
Following Campbell’s arrival at Miami International Airport on a flight from
Jamaica, he was required to pass through United States Customs. There, he told a
Customs agent that he had packed his own luggage and that everything in the luggage
belonged to him. The agent searched one of Campbell’s suitcases, found two
packages of cocaine, arrested Campbell, and took him into the enforcement area. A
second agent had observed the search and noted that as Campbell’s suitcase was
opened, Campbell appeared nervous and started looking around for points of exit.
The second agent then searched Campbell’s luggage; during this search, as a pair of
shoes was examined, Campbell commented that nothing would be found in the shoes.
Approximately thirty minutes later, a third Customs agent read Campbell his
Miranda rights; Campbell signed a waiver and agreed to make a statement. The agent
wrote out Campbell’s statement for him, in the third person, and included Campbell’s
comment that no one could have put anything in his suitcase. The agent also inserted
his personal opinion in the statement, commenting that he had told Campbell that
1 The facts are gleaned from the trial transcript.
2 “nobody gives this amount of cocaine to someone they don’t trust.” (R.2 at 60.)
Campbell read the statement, requested a few additions, and signed the revised
statement.
According to the third Customs agent, Campbell did two other things that were
consistent with guilt. First, although Campbell gave the agent the name and
description of the person who was supposed to pick him up at the airport, he refused
to identify the person. Next, while transporting Campbell to jail, the third Customs
agent and his partner discussed a pamphlet that described the penalties for smuggling
drugs into foreign countries. When the third agent told Campbell that the penalty for
smuggling drugs into Iran was death, Campbell responded that it did not pay enough
to smuggle drugs into Iran.
At trial, the principal issue was whether Campbell knew that the cocaine was
in his suitcase before it was discovered by Customs. One defense witness testified
that he had seen another person tampering with Campbell’s luggage during the trip to
the Jamaican airport and that he had told Campbell about this. The other defense
witness, Campbell’s cousin, with whom he normally stayed during his visits to Miami,
testified that the person who was supposed to meet Campbell at the airport telephoned
her, desperately trying to locate Campbell, several times on the day of Campbell’s
arrest.
3 The jury convicted Campbell on both counts. Campbell appeals, arguing that
the district court erred by admitting the Customs agent’s hearsay opinion contained
in his written, post-arrest statement and by permitting the Government to comment on
his silence, depriving him of his Fifth Amendment right to a fair trial.2
II. Discussion
Because Campbell did not object to these alleged errors at trial, we review only
for plain error. See United States v. De Castro, 113 F.3d 176, 180 (11th Cir. 1997).
To prevail, Campbell must prove three things: (1) an error, (2) that is plain, and (3)
that affects substantial rights. See Jones v. United States, 527 U.S. 373, ___, 119 S.
Ct. 2090, 2102 (1999) (citations omitted); see also Fed. R. Crim. P. 52(b). In order
to “affect substantial rights,” in most cases, the error must “have been prejudicial: It
must have affected the outcome of the district court proceedings.” United States v.
Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777-78 (1993). Moreover, the Supreme
Court has cautioned us to exercise our discretion to correct plain error only if the error
"seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings." Jones, 527 U.S. at ___, 119 S. Ct. at 2102 (citations omitted).
2 Campbell also argues that the Government improperly commented on his failure to call additional defense witnesses to explain his lack of knowledge that the cocaine was in his luggage. In response to Campbell’s objection at trial, the district court instructed the jury that Campbell had a right not to testify and that he had no obligation to put on any evidence. We conclude that the corrective instruction rendered any potential error on this point harmless.
4 Campbell’s first contention of error is the admission of and emphasis on the
Customs agent’s opinion. Campbell argues that this hearsay opinion was improperly
admitted as part of Campbell’s post-arrest statement. The Government discussed this
hearsay three times during the agent’s trial testimony and again during closing
argument. During closing, the Government treated the hearsay opinion as if it had
been the agent’s trial testimony. Finally, the trial was extremely short and, according
to Campbell, the evidence of his guilty knowledge was not otherwise overwhelming.
In light of these facts, Campbell contends that the admission of this hearsay opinion
was plain error.
The Government responds that Campbell never objected to the admission of the
opinion or its use by the Government and that the district court’s admission of the
statement was not plain error. The Government also argues that hearsay is not
prejudicial if the declarant is available for cross-examination. See United States v.
Bright, 630 F.2d 804, 815 (5th Cir. 1980) (holding that the admission of a hearsay
statement over objection was not prejudicial because the hearsay problem was
“adequately cured because [the declarant] was the next government witness and thus
was available for cross-examination on that point.”). Thus, the Government contends
that because the Customs agent testified and was available for cross-examination at
trial, no prejudice resulted from the admission of his hearsay statement.
5 We agree that the admission of the agent’s opinion does not satisfy the plain
error standard. Indeed, we do not think that any of the components of plain error are
present. First, we are unwilling to say that a trial court’s failure to sua sponte redact
a defendant’s statement to remove hearsay is error. And if it is error, it is certainly not
plain; Campbell cites no authority supporting the notion that the trial court’s failure
to sua sponte redact a defendant’s statement to remove hearsay is error. But, even
assuming that the admission was an error that was plain, we cannot say that it affected
Campbell’s substantial rights for three reasons. First, the declarant Customs agent
testified and was cross-examined. Second, the Customs agent could have stated the
same opinion as an expert witness. Third, Campbell’s knowledge that the cocaine was
in his luggage could have been inferred from other evidence presented at trial.
First, Campbell cannot establish prejudice because the Customs agent who
made the hearsay statement was called as a witness and was thoroughly cross-
examined at trial. See Bright, 630 F.2d at 815. The jury heard and understood that
Campbell’s statement had been transcribed, in the third person, by the Customs agent.
The agent acknowledged on the stand that he had inserted his own opinion into
Campbell’s statement. Furthermore, within the written statement, the agent clearly
labeled his opinion as his own, writing, “Agent McKenney explained to the defendant
that nobody gives this amount of cocaine to someone they don’t trust.” (R.2 at 60.)
6 Finally, the agent even admitted that individuals are sometimes unknowing couriers
of illegal drugs. Accordingly, the jury had ample opportunity to understand that the
agent’s opinion was only the agent’s opinion, not an admission of guilty knowledge
by Campbell.
Second, we note that, at the time of trial, Agent McKenney had been a special
agent for Customs for eleven years. His experience may well have qualified him as
an expert under Fed. R. Evid. 702 to state opinions of this kind. Perhaps this is why
Campbell’s trial counsel raised no objection to the admission of the agent’s opinion.
Finally, contrary to Campbell’s contention that the evidence of his guilty
knowledge was not otherwise overwhelming, substantial evidence supported the
inference that Campbell knew the cocaine was in his luggage. Campbell told the
agents that he had packed his own luggage, that everything in the luggage belonged
to him, and that no one else had access to his luggage. A Customs agent, who
observed the initial search of Campbell’s luggage, testified that as Campbell’s suitcase
was opened, Campbell appeared nervous and started looking around for points of exit.
The cocaine was found in one of Campbell’s suitcases. Furthermore, Campbell’s
additional statements that there were no drugs in his shoes and that it did not pay
enough to smuggle drugs into Iran, coupled with his refusal to identify the person who
was picking him up at the airport, support the inference of Campbell’s guilty
7 knowledge. The Customs agent’s statement merely provided cumulative evidence of
Campbell’s knowledge.
In light of this other evidence that Campbell had knowledge of the cocaine, the
context in which the agent’s statement was presented to the jury,3 and the agent’s
experience, we are not convinced that the admission and use of the statement
contributed to Campbell’s conviction.4 Accordingly, we conclude that Campbell has
failed to show the requisite prejudice to satisfy the plain error standard.
We emphasize, however, that our conclusion is not meant to condone the
Customs agent’s conduct in this investigation. It was improper for the agent to
include his personal opinion regarding Campbell’s guilty knowledge in Campbell’s
statement. But Campbell neither objected to the admission of the statement nor
requested its redaction. The other evidence in the case was too substantial to permit
a conclusion that admission of this agent’s opinion seriously affected the fairness of
this trial, and we respectfully decline the dissent’s invitation to create a rule that would
require district courts to independently police the admissibility of hearsay or risk
reversal.
3 Although the dissent takes the Government to task for its use of the agent’s opinion, hearsay, like any other evidence admitted without objection, can be used for any purpose and may be the subject of fair comment. 4 We do not agree with the dissent’s position that this evidentiary error somehow rises to the level of “constitutional error,” an argument not made by Campbell.
8 Campbell’s second contention of error is that the Government improperly
commented on his silence. Campbell complains that the Government used his silence
as a theme, emphasizing his pre-Miranda silence, his post-Miranda failure to confess,
and his silence in the face of the agent’s comment. According to Campbell, this
prosecutorial misconduct deprived him of his due process right to a fair trial.
Campbell concedes that the Government can use pre-Miranda silence to
impeach a defendant. See Jenkins v. Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124,
2129-30 (1980). In the present case, however, Campbell did not testify, and he argues
that, therefore, the Government could not have permissibly used his pre-Miranda
silence. The Government responds that the Eleventh Circuit has noted that a
prosecutor may, without restrictions, comment on a defendant’s pre-arrest, pre-
Miranda silence. See United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991);
see also United States v. Simon, 964 F.2d 1082, 1086 n.* (11th Cir. 1992) (“In Rivera,
we held that ‘the government may comment on a defendant's silence if it occurred
prior to the time that he is arrested and given his Miranda warnings.’” ). In turn,
Campbell contends that Rivera, which cited only Jenkins in support of its broad use
of pre-Miranda silence, was wrong. Fortunately, we need not sort out this confusion.
In the present case, given Rivera, any error in the admission of Campbell’s pre-
Miranda silence was not plain. See United States v. Humphrey, 164 F.3d 585, 588
9 (11th Cir. 1999) (“A plain error is an error that is ‘obvious’ and is ‘clear under current
law.’”) (citation omitted).
Finally, Campbell argues that the Government improperly commented on his
post-Miranda silence. Campbell complains that, in closing, the Government
highlighted his failure to deny ownership or knowledge of the cocaine at the Customs
office. He also contends that if the Customs agent had actually interrogated him
instead of merely implying his guilt, he would have invoked his right to remain silent.
The Government argues that it did not improperly comment on Campbell’s post-
Miranda silence, as Campbell waived his right to remain silent and made statements
that omitted (and, therefore, were inconsistent with) the defense offered at trial. We
conclude that because the Government simply made explicit an inference that the jury
could have drawn from the evidence, Campbell has not shown that his substantial
rights were affected. See United States v. Smith, 700 F.2d 627, 633-34 (11th Cir.
1983) (noting that a lawyer in closing argument has the right to state his contention
as to the conclusions that the jury should draw from the evidence).
III. Conclusion
For the foregoing reasons, Campbell’s convictions are
AFFIRMED.
10 GODBOLD, Circuit Judge, dissenting:
The government cannot be proud of this conviction. Governmental misconduct
before and at trial deprived the defendant of due process and of the fair trial to which
he is entitled.
The misconduct had two prongs. A government agent, the prosecution’s
leading witness, manufactured evidence tending to show defendant’s guilt. Then, in
a brief one-day trial, the government, with notice that the evidence was manufactured,
utilized it repeatedly to strike at the heart of defendant’s defense. This misconduct
demands a new trial and this court should require it.
Defendant, a United States citizen, entered the United States at the Miami
Airport, following a flight from Jamaica. Cocaine was discovered in his zippered
suitcase. Consistently he said that he packed his own suitcase, he did not put the
cocaine in his suitcase, it was not his cocaine, and he had no knowledge of it. The
court’s jury instructions clearly set out the issues: Count I, the defendant knowingly
imported cocaine from a place outside the United States; Count II, the defendant
knowingly and willfully possessed cocaine with the intent to distribute it. The trial
judge explained that “knowingly” meant that the act was done voluntarily and
intentionally and not because of mistake or accident. And he explained that
“willfully” meant that the act was committed voluntarily and purposefully with the
11 specific intent to do something that the law forbids. The government inferred
knowledge from the fact of possession. Campbell’s defense was lack of knowledge.
This is a thin case on liability. It barely gets by sufficiency of the evidence
requirements. The defendant did not testify but submitted evidence supporting his
defense that without his knowledge someone had placed the cocaine in his suitcase
and made him an unwitting courier.
I. The manufacture of evidence
After Campbell was arrested and given a Miranda warning he made a voluntary
statement. It did not follow the usual form of a suspect’s writing what he chooses to
say. Instead Customs Agent McKenney wrote down in third party form what he said
Campbell had stated orally to him. According to McKenney, Campbell asked him
(McKenney) to write for him. In the middle of McKenney’s written statement
describing what Campbell had said to him, McKenney improperly inserted his own
volunteered statement expressing his opinion that Campbell necessarily had
knowledge of the cocaine. Speaking as a purported expert and departing from his
undertaking to record what Campbell said, McKenney inserted this:
Agent McKenney explained to the defendant that nobody gives this amount of cocaine to someone that they don’t trust. (R.2, p. 60).
In short, he inferred from the amount of the cocaine (approximately one-half kilo) that
someone had entrusted it to Campbell and, because it was entrusted to Campbell he
12 necessarily had knowledge of it. This opinion – that amount equals entrustment and
entrustment equals knowledge – became the core of the prosecution’s case. When
McKenney inserted his opinion into Campbell’s statement there was no evidence that
Campbell had been entrusted with the cocaine. It was egregiously improper for the
agent to include in Campbell’s statement his own opinion that lack of knowledge, the
critical basis of Campbell’s defense, was without merit. This manufacture of evidence
was no less egregious than police manufacture of evidence by planting a “throw
down” gun at the scene of a crime or forging a confession. In fact it was arguably
more egregious because Campbell had asked McKenney to be the scribe for his
statement, surely expecting that McKenney would perform the task as requested, and
McKenney had abused that trust.
In this court the government has made no real attempt to explain or defend
McKenney’s misconduct in manufacturing evidence. Its lame explanation that
McKenney was just reacting with a parenthetical response to what Campbell had said,
and was trying to prompt Campbell to tell the truth, deserves no response.
13 II. Use of the manufactured evidence at trial
Here is what happened at trial. McKenney was the government’s representative
at the counsel table. He testified in the government’s case in chief, following
testimony of the agents who had discovered cocaine in Campbell’s suitcase. He
identified the written statement signed by Campbell, and the government introduced
it. (R.2, 58). The prosecutor then had him read the full statement to the jury on the
ground, the prosecutor said, “For those of us who can’t read your writing.” (R.2, 58).
These steps enabled the government to bring McKenney’s statement into evidence
without the usual predicates that are required to give validity to opinion evidence and
to emphasize it by having the government’s representative at trial read it aloud.
Introducing Campbell’s statement, with McKenney’s statement included, and having
him read it to the jury, were only the opening guns. The prosecutor then referred to
McKenney’s interjected comment and, as the government describes in its brief, the
prosecutor “further elucidated the matter.” This colloquy followed:
Q. . . . What, if anything, did you explain to the defendant?
A: At this time, I explained to defendant that nobody gives this amount of cocaine to someone they don’t trust.
Q: And did you put this into the written statement that the defendant signed?
14 A. Yes, I did. (R.2, 60).
The prosecutor referred to McKenney’s statement a fourth time by having him
re-read his interjected statement:
Q: Would you please read that part of the statement that reflects that conversation?
A: “Agent McKenney explained to the defendant that nobody gives this amount of cocaine to someone that they don’t trust.” (R.2, 60).
There followed four questions and answers concerning the amount of money
that defendant had in is possession and a question concerning where defendant was
to stay in Florida and who was to pick him up at the airport. The following colloquy
then occurred, the fifth reference to McKenney’s statement. This time McKenney
added a new volunteered statement directed to the basis for his opinion as an expert.
B: What, if anything, did you ask the defendant about this individual who was supposed to pick him up, Sidney Bourne?
A: That’s when I went back to the statement that nobody gives -- in my experience working in the airport, nobody gives that amount of cocaine to someone that they don’t trust. (R.2, 61).
The prosecution got in its sixth lick in oral argument to the jury. The
prosecutor told the jury:
Ladies and gentlemen, the defendant’s own
15 statements would indicate he knew that the cocaine was in his luggage. As the agent testified, you don’t trust a half kilo of cocaine to someone that you don’t know. (R.2, 125).
The majority acknowledge that “During closing, the Government treated the hearsay
opinion [of McKenney] as if it had been the agent’s trial testimony.”
At no point did the prosecutor suggest that the statement be redacted to
remove McKenney’s inserted remark.
Campbell did not testify. But he submitted evidence supporting his lack of
knowledge defense. Donald Parker, an electrician whose place of business in
Jamaica is close to Campbell’s, testified that he drove Campbell to the Jamaican
airport about two hours distant from where Campbell lived. Parker’s vehicle was
a pick-up truck with a camper top. On the way Campbell asked Parker to stop at the
home of Sidney Bourne, Campbell’s cousin, to pick up an engine block to be
repaired in the United States. Sidney’s brother, Alden, carried the engine block out
of the house, accompanied by an unknown person. The engine block was placed in
the back of the truck where Campbell’s luggage had been placed. Campbell sat in
the passenger seat of the cab, and the two passengers sat in the back of the truck. On
the way to the airport the unknown person was dropped off at his request. Parker,
Campbell and Alden Bourne continued, with Alden sitting in the back of the truck.
Parker, the driver, noticed that Campbell’s luggage had been opened and a pair of
16 jeans had been pulled out. He told Campbell what he had seen. Campbell looked
through the window in the back of the cab and observed that he did not see the
suitcase opened and that it was closed.
Campbell carried the engine block to Miami along with his suitcase. Campbell
was to be met at the airport in Miami by Sidney Bourne, and he was to go to the
home of a female relative with whom he stayed whenever he was in Miami. When
Campbell was arrested he gave the Customs officers Sidney Bourne’s name and
description. However, he declined to point him out to the officers.
The jury could infer from the evidence that Campbell was the victim of a
scheme pursuant to which, without his knowledge, Alden Bourne, or the unidentified
third person, opened the zippered suitcase, wrapped the cocaine in the jeans, and
slipped the package back into the suitcase. It could infer that Sidney Bourne was to
meet Campbell at the Miami airport and extract the cocaine from the suitcase
without Campbell’s knowledge.
McKenney’s inserted opinion was only one sentence. But it went to the heart
of Campbell’s defense. It had persuasive power because McKenney was the senior
Customs agent and had been called to take over the investigation after the cocaine
was discovered. At trial he sat at the counsel table. The most compelling evidence
of the importance of his statement is the government’s repeated use of it and
17 emphasis of it.
The government’s actions at trial are no less egregious than the manufacture
of evidence. This is not a case where someone blurted out a surprise remark. The
prosecutor acted deliberately. She had possession of the statement and surely knew
from its face that it was tainted. After introducing the document she had McKenney
read it to the jury on the premise of poor handwriting. Then, as the case proceeded,
all the way through closing argument, she repeatedly hammered home McKenney’s
statement of his opinion. A simple motion to redact would have cured the taint, but
she made no motion and, to the contrary, used the tainted remark for the upmost
benefit.
The government’s justifications for use of the tainted statement at trial are no
more convincing then the excuses for manufacturing evidence. The government
says it was “impeaching a defense.” But McKenney’s statement was introduced in
the government’s case-in-chief. The government introduced a largely exculpatory
statement then sought to impeach its exculpatory content by McKenney’s inserted
remark. In U.S. v. Crutchfield, 26 F.3d 1098 (11th Cir. 1994) the prosecutor
attempted to justify improper questioning of a witness by stating that he was
“anticipating” that defense counsel would use the subject matter of the question in
an effort to impeach the witness. He claimed to have introduced the substance of the
18 message to “draw the sting” from this anticipated attack. The court struck the
testimony, gave a curative instruction, and warned the prosecutor to be more careful
of what he brought up “in anticipation of a defense.”
III. The decision of this court
This court errs in its treatment of the manufacture of evidence and the use of
that evidence at trial with knowledge of its taint. As to manufacture of evidence, the
court passes over McKenney’s misconduct in two sentences, one saying that he
shouldn’t have done it and the second saying this court doesn’t condone it. This
powderpuff treatment trivializes the wrong by an experienced agent of our
government. It disposes of use of the manufactured evidence at trial on the ground
that since defendant did not object or ask for redaction the plain error rule applies
and the statement really didn’t hurt Campbell very much. The court does not even
recognize the prosecutor’s wrong in repeatedly making use of what she knew to be
manufactured evidence. Instead the court excuses prosecutorial misconduct (n. 3)
by saying that since the evidence was admitted without objection it could be used
for any purpose. Surely this procedural rule cannot immunize the government from
the wrong of using evidence that it knows is tainted.
This court does not adequately treat an error of constitutional dimension. It
minimizes the governmental misconduct. It does not recognize that government
19 manufacture of evidence plus subsequent use of it at trial with knowledge of its taint
is a constitutional wrong. It does not utilize the correct standards for judging a
constitutional wrong. It does not consider whether the overall government
misconduct is harmless beyond a reasonable doubt.
IV. Standards governing constitutional errors
There are some constitutional errors that cannot be categorized as harmless
error. Chapman v. California, 386 U.S. 18 (1967) noted three: using a coerced
confession against a defendant in a criminal trial, depriving a defendant of counsel,
and trying a defendant before a biased judge. Later cases have added other
constitutional errors not subject to harmless error: The right to self-representation
at trial, McKashie v. Wiggins, 465 U.S. 168, 177-78 (1984); failure to instruct a
jury on the reasonable doubt standard, Jackson v. Virginia, 443 U.S. 307, 320 (n. 14)
(1979); unlawful exclusion of members of the defendant’s race from the grand jury
that indicted him, despite overwhelming evidence of guilt, Vasquez v. Hillery, 474
U.S. 254 (1986); denial of public trial, Waller v. Georgia, 467 U.S. 39, 49 (1984).
See also Tumey v. Ohio 273 U.S. 510, 535 (1927) (trial before a judge with a
financial interest in the outcome); Sparf v. U.S., 156 U.S. 51, 105 (1895) (erroneous
entry of a judgment of conviction by the judge or a direction to the jury to convict,
directing the jury to do so in a criminal trial). But see Arizona v. Fulminante, 499
20 U.S. 279 (1991) (the Supreme Court, in a five-four decision, withdrew from this
class of cases in which constitutional error cannot be considered as harmless error
the use of a coerced confession).
We should hold that government manufacture of incriminating evidence that
is subsequently introduced at trial with knowledge that it has been manufactured is
a constitutional error and not subject to the harmless error rule.1
If, however, the manufacture and knowing use of such tainted evidence, combined
together, is subject to the harmless error rule, that is not the end of the matter.
Chapman requires that the error must be harmless beyond reasonable doubt.
This court and the Supreme Court have applied Chapman in numerous
contexts, with many different characterizations of what “harmless error beyond
reasonable doubt” means. “The court must be convinced that error did not
contribute to the defendant’s conviction.” U.S. v. Burgess, 175 F.3d 126 (11th Cir.
1999). In Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) the test was “whether the
guilty verdict actually rendered in this trial was surely unattributable to the error.”
In Cape v. Frances we phrased the test in this fashion: “We must consider ‘whether,
1 I do not need to address in this case whether the government’s use of any manufactured evidence, whatever the source, with knowledge of its taint, is a constitutional violation. In this case the constitutional error is double barreled, manufacture and use.
21 absent the so-determined unconstitutional effect, the evidence remains not only
sufficient to support the verdict but so outstanding as to establish the guilt of the
accused beyond reasonable doubt.’” (741 F.2d 1287, 1294 (11th Cir. 1994) (quoting
Harryman v. Estelle), 616 F.2d 870, 875 (5th Cir. (en banc), cert. denied, 449 U.S.
860 (1980)).
In many Chapman-based cases repetition of the error is determinative or
highly significant. Hill v. Turpin, 135 F.3d 1411 (11th Cir. 1998) (several
references to defendant’s post-Miranda request for counsel and assertion of right to
silence); U.S. v. Tenorio, 69 F.3d 1103, 1106-07 (11th Cir. 1995) (repeated
references to post-Miranda silence).
In U.S. v. Mills, 138 F.3d 928, 939-40 (11th Cir. 1998), Judge Cox set out and
applied five factors that I apply to this case. (1) How important was the witness’
testimony to the prosecution’s case? It was vital. (2) Was other testimony
cumulative? No. (3) Was there corroborating evidence to the testimony in
question? No. (4) What was the extent of cross-examination? Minimal or none on
the subject matter. (5) What was the overall strength of the prosecution’s case?
Very thin.
The evidence in this case does not meet the Chapman test. The evidence is
not overwhelming. The prosecution repeatedly utilized government-tainted evidence
22 with knowledge of the taint.
V. Departure from our standards concerning prosecutorial misconduct
For at least half a century this court, and its predecessor the Fifth Circuit, have
dealt head on with prosecutorial misconduct and its consequences. We have taken
to heart the often-quoted language of the Supreme Court in Berger v. U.S.:
A United States district attorney carries a double burden. He owes an obligation to the government, just as any attorney owes an obligation to his client, to conduct his case zealously. But he must remember also that he is the representative of a government dedicated to fairness and equal justice to all and, in this respect, he owes a heavy obligation to the accused. Such representation imposes an overriding obligation of fairness so important that Anglo- American criminal law rests on the foundation: better the guilty escape than the innocent suffer. In this case zeal outran fairness. The argument of the United States attorney in the district court was improper, prejudicial, and constituted reversible error.
205 U.S. 78, 88 (1935).
In Handford v. U.S., 249 F.2d 295 (5th Cir. 1957) the charge was illegal
possession of nontax paid whiskey. The critical issue was whether the defendant had
dominion and control. As in the present cases, the evidence was “far from
conclusive” and the court held that the jury might have found that defendant did not
in fact have such dominion and control as to constitute possession. The prosecutor
had appealed to racial prejudice and argued that “too many of the prosecutor’s
23 friends’ children got run over up and down the highways.” Quoting from Berger the
Fifth Circuit reversed the conviction because “zeal outran fairness.”
In Dunn v. U.S., 307 F.2d 883, 885 (5th Cir. 1962) one of the grounds for
reversal was an inflammatory opening statement by the prosecutor. The court
reversed, relying upon Handford.
In U.S. v. Eason, 920 F.2d 731 (11th Cir. 1990), the government, while cross-
examining the defendant, introduced evidence that the defendant’s father-in-law had
been convicted of similar offense. Prosecutorial use of the offensive material was
similar to that in this case.
The problem confronting [the court] was not the result of inadvertence; no witness volunteered or “blurted out” the fact that Eason Sr. had been convicted. The government deliberately introduced Eason, Sr’s conviction.
Id. at 734. The court reversed. It “felt obligated” to remind the United States
attorneys of their duty in a criminal prosecution and quoted the language from
Berger. Id. at 735-36.
Some cases of improper conduct have not been reversed because there was
overwhelming evidence of defendant’s guilt and, in some cases, a curative instruction
as well. See e.g., U.S. v. Alexander, 835 F.2d 1406, 1410 (11th Cir. 1988)
(overwhelming evidence of defendant’s guilt); U.S. v. Cotton, 770 F.2d 940, 948
(11th Cir. 1985) (jury instruction given and evidence of defendant’s guilt
24 overwhelming); U.S. v. Tutt, 704 F.2d 1567, 1569-70 (11th Cir. 1983) (prosecutorial
misconduct by single reference in opening statement, curative instruction,
identification of defendant by several witnesses, and overwhelming evidence); U.S.
v. Nooks, 446 F.2d 1283, 1289 (5th Cir. 1971) (circumstances reeking of guilt). The
evidence in the instant case was not overwhelming, and no instruction was given
concerning McKenney’s statement of opinion.
This court departs from the policies of the past concerning governmental
misconduct. The government agency and its agents are responsible that evidence is
not manufactured. It is the prosecutor’s responsibility that evidence known to have
been manufactured will not be used. It is she who is duty bound to clean up the
evidence by asking for redaction. The trial court must be alert that manufactured
evidence is not used. The decision in this case shifts to defense counsel the total
onus for infection of a criminal trial by governmental conduct that he neither caused
nor contributed to. It is wrong that agencies of government are permitted to seek and
gain advantage from their misconduct and suffer no consequences. It is wrong that
sole responsibility for a tainted trial is shifted to defense counsel because he was not
a sufficient gatekeeper to prevent the use of evidence that should have been neither
created nor used.
This is a shabby case. Our government can do better then this. It would have
25 elevated itself by confessing error, thereby sending a signal to its agent that it
demands rectitude from those who gather evidence for our judicial system and those
who use it. Absent that response this court should say that what occurrence in this
case was wrong, and that the responsibility for it should not be shifted to defense
counsel but should reverse and remand for the fair trial to which defendant is entitled.