U.S. v. Robinson

• Decision Date: 07 September 1983
• Docket Number: No. 82-5366,82-5366
• Citation: 716 F.2d 1095
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas O. ROBINSON, Jr., and Aleida Robinson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1095

716 F.2d 1095

UNITED STATES of America, Plaintiff-Appellee, v. Thomas O. ROBINSON, Jr., and Aleida Robinson, Defendants-Appellants.

No. 82-5366.

United States Court of Appeals Sixth Circuit.

Argued May 4, 1983.

Decided Sept. 7, 1983.

Bart Durham, Joseph M. Dalton, Jr., (argued), Nashville, Tenn., for defendants-appellants.

Joe B. Brown, U.S. Atty., Robert J. Washko, Asst. U.S. Atty. (argued), Nashville, Tenn., for plaintiff-appellee.

Before KEITH and WELLFORD, Circuit Judges, and COHN, District Judge. ^*

WELLFORD, Circuit Judge.

Defendants-appellants appeal their convictions by a jury in the United States District Court for the Middle District of Tennessee (Wiseman, J.) of mail fraud, 18 U.S.C. Sec. 1341, and aiding and abetting, 18 U.S.C. Sec. 2. The question is whether reversible error occurred at trial when the prosecutor was permitted by the court to comment on the failure of one of the defendants to take the stand in his own defense. We find that the misconduct deprived the defendant Thomas Robinson, Jr., of a fair trial under the Fifth Amendment and 18 U.S.C. Sec. 3481, and therefore reverse his conviction. ¹ Because we find that the error did not affect the trial of Aleida Robinson, we affirm her conviction.

Thomas Robinson, Jr., was convicted of two counts of mail fraud based on two separate fires and insurance claims and was sentenced to two five-year concurrent sentences, which were suspended except for five months and 29 days. Aleida Robinson, his wife, was convicted of one count and received two years probation.

The prosecution sought at trial to demonstrate that the defendants had fraudulently claimed losses on real and personal property destroyed by fire at their Clarksville, Tennessee, home and on business property destroyed by fire at a truck stop leased by Mr. Robinson in Guthrie, Kentucky. The prosecution introduced evidence to show not only that the losses submitted exceeded those actually incurred, but also to imply that Mr. and/or Mrs. Robinson set or caused the fires to be set. Both fires took place under suspicious circumstances in which the Robinsons were allegedly implicated.

I.

Appellants contend that the following statement by the Assistant U.S. Attorney at the rebuttal stage of closing argument entitles them to a new trial:

He could have taken the stand and explained it to you, anything he wanted to. The United States of America has given him, throughout, the opportunity to explain.

Appellee contends that the statement was properly made because the defense attorney had "baited" the prosecutor by alleging in closing argument that the government had not "played fair" in its investigation and in the course of the trial. ² The district judge agreed with the government that the defense had "opened the door" to a comment on the defendants failure to take the stand. Out of the presence of the jury, the judge made the following ruling:

Yes, Mr. Washko, I will tell you what, the Fifth Amendment ties the Government's hands in terms of commenting upon the defendants' failure to testify. But that tying of hands is not putting you into a boxing match with your hands tied behind your back and allowing him to punch you in the face.

That is not what it was intended for and not fair. I will let you say that the defendants had every opportunity, if they wanted to, to explain this to the ladies and gentlemen of the jury.

We might get reversed on it. Mr. Durham opened the door not less than four times in his argument on that question. I will let you comment on it in response.

Tr. at 681.

The Government also contends that if it was error for the comment to have been permitted, that that error was cured by the court's later instruction to the jury:

The law does not require a defendant to prove his innocence or produce any evidence at all, and no inference whatever may be drawn from the election of a defendant not to testify. The government has the burden of proving him guilty beyond a reasonable doubt, and if it fails to do so you must acquit him.

....

The jury will also keep in mind this: The law never imposes upon defendants in criminal cases the burden or duty of calling any witnesses or producing any evidence, and no adverse inference may be drawn from their failure to do so. ³

In the alternative, the government argues that error, if any, was harmless.

II.

It is clear under Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650 (1893), that no reference may be made at trial to a defendant's failure to testify. The Supreme Court held in Griffin:

Comment on the refusal to testify is a remnant of the "inquisitorial system of criminal justice," Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 [84 S.Ct. 1594, 1596, 12 L.Ed.2d 678], which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused's knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. People v. Modesto, 62 Cal.2d 436, 452-453 , 398 P.2d 753, 762-763. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.

380 U.S. at 614, 85 S.Ct. at 1232 (footnote omitted).

Appellee contends that there is precedent for permitting a prosecutor to make reference to a defendant's failure to testify, where, as here, defense counsel has accused the Government of not giving his client an opportunity to explain. In United States v. Roberts, 548 F.2d 665, 668-69 (6th Cir.1977), two defense attorneys explained to a federal jury that they had advised their clients not to testify because two and a half years had elapsed since the robbery, and they could not be expected to recall what they had done on a particular day at a particular time so long ago. The court held that the prosecutor was permitted to rebut with the following statement: "my question to you, or the Government's question to you is, do you think you would remember when you were arrested for bank robbery?" 548 F.2d at 669. Although the court allowed this indirect comment, neither Roberts nor the other case cited by appellee, Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.1979), suggests that a direct comment on a defendant's failure to testify can be made, even if defense counsel has baited the prosecutor. In light of Mr. Robinson's counsel's statements, we can comprehend the desire of the district court to give "equal time," as it were, to the Government, but the action taken was impermissible under the fifth amendment. The error was not cured, moreover, by the court's later jury charge.

The prosecutor's comment in the instant case was an overt reference to the defendants failure to testify, not an oblique reference which reasonably could be construed in any other way. See Angel v. Overberg, 682 F.2d 605 (6th Cir.1982) (en banc ). ⁴ In this instance it appears that "the prosecutor's manifest intent was to comment on the accused's failure to testify" and "the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Steele v. Taylor, 684 F.2d 1193, 1204 (6th Cir.1982). The instant case is therefore distinguishable from Butler v. Rose, 686 F.2d 1163 (6th Cir.1982) (en banc ), in which the court declined to grant a writ of habeas corpus to a petitioner who had been convicted in a state court trial. ⁵ Furthermore, since the instant case is before the court on direct review, not habeas corpus relief, the standard of review is more stringent. See United States v. Hasting, --- U.S. ----, ----, 103 S.Ct. 1974, 1983, 76 L.Ed.2d 96 (Stevens, J., concurring). ⁶ In the instant case the prosecutor's statement was the kind of comment on Mr. Robinson's failure to testify that an inference of guilt was to be drawn therefrom. It was therefore "fundamental error." Rachel v. Bordenkircher, 590 F.2d 200, 202 (6th Cir.1978).

III.

In cases involving such direct comments as the one at bar, "the court must reverse unless the prosecution can demonstrate that the error was harmless beyond a reasonable doubt." Raper v. Mintzes, 706 F.2d 161, 164 (6th Cir.1983). The government contends, without briefing the issue, that the error is harmless. In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court fashioned the following harmless error rule in the context of a Griffin violation:

[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.

386 U.S. at 24, 87 S.Ct. at 828. In Chapman the Supreme Court found that the comments by the prosecutor were not harmless beyond a reasonable doubt:

[T]he state prosecutor's argument and the trial judge's instruction to the jury continuously and repeatedly impressed the jury that from the failure of petitioners to testify, to all intents and purposes, the inferences from the facts and evidence had to be drawn in favor of the State--in short, that by their silence petitioners had served as irrefutable witnesses against themselves. And though the case in which this occurred presented a reasonably strong "circumstantial web of evidence" against petitioners, it was also a case in which, absent the constitutionally forbidden comments, honest, fair minded jurors might very well have brought in not-guilty verdicts. Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor's comments and the trial judge's instruction did not contribute to petitioners'...