684 F.3d 1173 (11th Cir. 2012), 10-15912, United States v. House

Docket Nº:10-15912.
Citation:684 F.3d 1173
Opinion Judge:PRYOR, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Stephen G. HOUSE, Defendant-Appellant.
Attorney:William L. McKinnon, Jr., Lawrence R. Sommerfeld, Sally Yates, Atlanta, GA, for Plaintiff-Appellee. Marcia G. Shein, Law Office of Marcia G. Shein, PC, Decatur, GA, for Defendant-Appellant.
Judge Panel:Before BARKETT and PRYOR, Circuit Judges, and BUCKLEW,[*] District Judge.
Case Date:June 20, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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684 F.3d 1173 (11th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Stephen G. HOUSE, Defendant-Appellant.

No. 10-15912.

United States Court of Appeals, Eleventh Circuit.

June 20, 2012

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William L. McKinnon, Jr., Lawrence R. Sommerfeld, Sally Yates, Atlanta, GA, for Plaintiff-Appellee.

Marcia G. Shein, Law Office of Marcia G. Shein, PC, Decatur, GA, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Georgia.

Before BARKETT and PRYOR, Circuit Judges, and BUCKLEW,[*] District Judge.

PRYOR, Circuit Judge:

When the driver of a motor vehicle notices blue lights flashing in the rear view mirror, the driver cannot help but feel a sense of dread. The public reposes a special trust in the peace officers we empower to patrol our highways. That power includes the authority to disrupt the flow of motor vehicle traffic, often traveling at high speeds, and the power to detain a driver and vehicle on the side of a road, which can be a dangerous place. This appeal involves a federal officer with limited authority who repeatedly usurped the

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power to patrol traffic, violated the civil rights of motorists, abused the public trust, and lied about it in official reports.

Stephen G. House, a former officer of the Federal Protective Service, appeals his convictions and sentences for eight counts of willfully depriving a person of the constitutional right to be free from unreasonable seizure by a law enforcement officer, 18 U.S.C. § 242, and four counts of making false statements in a matter within the jurisdiction of a federal agency, id. § 1001. House raises seven issues on appeal: (1) whether the record contains sufficient evidence to support his convictions, (2) whether the district court erred in instructing the jury, (3) whether the district court improperly interjected itself into the trial, (4) whether the district court improperly excluded evidence, (5) whether the prosecutor improperly commented on House's decision not to testify, (6) whether his trial counsel provided ineffective assistance, and (7) whether the cumulative effect of any errors deprived him of a fair trial. The first two issues are interrelated because the district court erred in instructing the jury that a traffic stop is unreasonable under the Fourth Amendment whenever conducted by a law enforcement officer acting without jurisdiction or authority. The Supreme Court has ruled that a traffic stop is reasonable under the Fourth Amendment when supported by probable cause or reasonable suspicion even if it is inconsistent with agency policy, Whren v. United States, 517 U.S. 806, 813-16, 116 S.Ct. 1769, 1774-76, 135 L.Ed.2d 89 (1996), or state law, Virginia v. Moore, 553 U.S. 164, 173-76, 128 S.Ct. 1598, 1605-07, 170 L.Ed.2d 559 (2008). The record nevertheless establishes that this error is harmless as to four of House's convictions for unreasonable seizures because the jury discredited House's accounts of probable cause or reasonable suspicion when it convicted him of making false statements in four incident reports. We affirm four of House's eight convictions for willful unreasonable seizures and affirm his four convictions for making false statements, but we vacate the remaining convictions for willful unreasonable seizures. All of House's other arguments fail. We remand this matter to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

Beginning in 1999, Stephen G. House worked for the Federal Protective Service as a law enforcement officer and inspector. The Federal Protective Service is a law enforcement agency with jurisdiction over properties owned and operated by the General Services Administration. As a Federal Protective Service officer, House wore a uniform with a badge, patches on the uniform identifying him as a federal law enforcement officer, a name tag, and a utility belt in which he carried a handgun, a radio, and handcuffs. He also operated a motor vehicle with Federal Protective Service markings, sirens, emergency lights on the roof and in the grille, and a phone number listed on the rear.

In 2010, a federal grand jury returned a superseding indictment that charged House with eight counts of depriving a motorist of the constitutional right to be free from unreasonable seizure by a law enforcement officer, 18 U.S.C. § 242, and four counts of making false statements in a matter within the jurisdiction of the Federal Protective Service, id. § 1001. Count one charged an unlawful traffic stop of Truman Padgett on July 28, 2006. Count two charged an unlawful traffic stop of Truman Padgett on November 28, 2006. Count three charged an unlawful traffic stop of Sonya Caravalho on February 26, 2007. Count four charged an unlawful traffic stop of Anthony Rivas on July 25,

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2007. Count five charged submission of an incident report containing materially false statements regarding the stop of Rivas. Count six charged an unlawful traffic stop of Joseph Kinnamont on April 30, 2008. Count seven charged an unlawful traffic stop of Davis Wibel on December 3, 2008. Count eight charged submission of an incident report containing materially false statements regarding the stop of Wibel. Count nine charged an unlawful attempted traffic stop of Daniel McFarland on January 9, 2009. Count ten charged submission of an incident report containing materially false statements regarding the stop of McFarland. Count eleven charged an unlawful traffic stop of Reginald Thompson on April 15, 2009. Count twelve charged submission of an incident report containing materially false statements regarding the stop of Thompson.

Immediately after the jury was administered its oath at House's trial, the district court explained to them that it would charge them about the law after the presentation of the evidence. The court also instructed the jury, " Don't start making up your mind about the guilt or innocence of the defendant until you have heard the whole case. We have a bad habit as human beings of letting first impressions control what we think about something. Wait until you hear it all."

At trial, the government presented testimony from several current and former officers of the Federal Protective Service about the limitations imposed upon their authority by agency policy and about House's history of violating that policy. The officers testified that agency policy prohibited officers from conducting traffic stops for minor traffic violations outside of federal property in the State of Georgia. Agency policy likewise prohibited officers from activating the emergency lights on their vehicles outside of federal property, except in response to a life-threatening emergency, while in hot pursuit of a felon, or with prior approval from a Federal Protective Service Mega Center Operator or a supervisor.

Agency policy required officers who conducted a traffic stop or activated the emergency lights on their vehicles to submit an incident report on a numbered agency form, General Services Administration Form 3155. Dewayne Andrews, a Regional Director, testified that it was important for officers to be truthful in the reports, both because the Federal Protective Service used the reports in determining whether an officer's use of his emergency lights was permissible and because other law enforcement agencies used the reports in criminal prosecutions. Russell Dingman, a Senior Instructor and Program Manager at the Federal Law Enforcement Training Center, also testified that it was important that a report include truthful information regarding " all of the facts of the case, the who, what, when, where, and how of the case." Dingman explained that other agencies used the reports in deciding whether to initiate criminal prosecutions, and he testified that false statements in a report could ruin any case an agency attempted to pursue based upon events described in that report.

Three officers also testified that House had been reprimanded about violating agency policy regarding traffic stops on several occasions during his career with the Federal Protective Service. Andrews; John Curtis Glynn, Jr., a former District Director; and Shirley Reed, a Risk Management Branch Chief, each testified about personally explaining to House that his authority did not encompass stopping motorists for minor traffic violations outside federal property. Glynn testified that he had prepared a written reprimand of House for conducting a traffic stop without

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authority, but that he had not delivered the reprimand after meeting with House and warning him about agency policy regarding traffic stops. Glynn explained that his main concern had been that House understood the policy and recognized that violating that policy " could lead to a more severe action by [the Federal Protective Service]." Reed testified that, after she had received a report that House had conducted a traffic stop without authority, she spoke with House to ensure that he understood agency policy regarding traffic stops. Andrews testified that he received notice of an internal agency investigation of House premised upon allegations that House had conducted traffic stops without authority, and that House's right to drive his law enforcement vehicle home from work was temporarily suspended because of that investigation. Andrews stated that he had...

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