U.S. v. Blakey

• Decision Date: 01 March 1994
• Docket Number: No. 92-9191,92-9191
• Citation: 14 F.3d 1557
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jay A. BLAKEY, aka Barry Williams, aka Jay Bleckey, aka Jerry Blakey, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1557

14 F.3d 1557

UNITED STATES of America, Plaintiff-Appellee, v. Jay A. BLAKEY, aka Barry Williams, aka Jay Bleckey, aka

Jerry Blakey, Defendant-Appellant.

No. 92-9191.

United States Court of Appeals, Eleventh Circuit.

March 1, 1994.

Gregory S. Smith, Federal Defender Program, Inc., Atlanta, GA, for defendant-appellant.

Martin James Weinstein, Asst. U.S. Atty., Atlanta, GA, for plaintiff-appellee.

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

Before HATCHETT and COX, Circuit Judges, and RONEY, Senior Circuit Judge.

HATCHETT, Circuit Judge:

Because of the prosecutor's improper closing arguments, we reverse the convictions in this case and remand it for a new trial.

FACTS

On March 24, 1987, Terrance Lockhart received a Federal Express package containing a $35,000 cashier's check at his acquaintance's, Lawrence Stoffer, mother's home. When the check arrived, the payee line was blank and the check bore the authorizing signature of Barry Williams. ¹ Upon receiving the check, Lockhart urged Stoffer to cash it. Stoffer, however, abandoned this idea when he could not verify the check through the Federal Reserve Bank.

The following day, Ronald Townsend, vice president of American Finance Group (ARG) and the sole signatory on the ARG account, deposited the altered check, now made payable to ARG, into ARG's checking account at Citizens and Southern National Bank (C & S). ARG, solely owned by Ronald Westmoreland, financed the purchase and sale of low income rehabilitated residential properties. At trial, Townsend testified that Blakey wanted him (Townsend) to cash the altered check to satisfy a $15,000 debt Blakey owed to Westmoreland, and to return the difference to Blakey. Townsend further testified that he deposited the altered check at Westmoreland's direction.

In the days following this transaction, at Westmoreland's direction, Townsend issued several checks, drawing on the deposited cashier's check, totaling almost $18,000 to Westmoreland, his wife, and their creditors. Townsend also issued two checks, totaling $11,000 to Junius Johnson. At trial, Johnson testified that after accompanying Blakey to Atlanta, he received the two checks from Townsend, cashed them and gave the proceeds to Blakey. Johnson also testified that Blakey paid him between $2,000 and $3,000 for his "expenses."

On March 31, 1987, Ohio State Federal Savings and Loan, the bank that issued the cashier's check returned it to C & S, which debited the $35,000 from the ARG account. ² Federal Savings traced the altered check to a $5 cashier's check which it issued years before, and determined that the authorizing signature on the check, Barry A. Williams, was not an employee of Federal Savings. At trial, the government introduced into evidence a Georgia identification card bearing Blakey's photograph and a Barry A. Williams signature similar to the one appearing on the altered check.

PROCEDURAL HISTORY

During the summer of 1990, Louisiana authorities arrested Blakey and returned him to Atlanta to stand trial for three charges arising from the check fraud. Count I of the indictment charged conspiracy to defraud C & S and conspiracy to possess a counterfeit security; Count II charged bank fraud; and Count III charged possession of a counterfeit security. Following a trial in November, 1991, a jury convicted Blakey on Counts I and III, but acquitted him of Count II. Blakey The district court retried Blakey beginning October 21, 1992, submitting the case to the jury on October 26. During its deliberations, which lasted until October 28, the jury asked for reinstruction on the definitions of conspiracy and reasonable doubt. The jury also sent the court two notes. After receiving the first note, which stated that the jury could not reach a unanimous verdict, the district court delivered a modified Allen charge. See Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896). The second note, coming approximately two hours later, asked the court for further instruction on reaching a unanimous verdict, and the court gave a shortened version of the first Allen charge.

appealed and this court reversed, holding that the trial court improperly admitted into evidence a hearsay statement of a codefendant, not made in furtherance of the conspiracy. United States v. Blakey, 960 F.2d 996, 997 (11th Cir.1992). The court then remanded the case for a new trial on the conspiracy and possession charges.

On October 28, the jury returned verdicts of guilty. The district court sentenced Blakey to five years imprisonment on each count to run concurrently.

CONTENTIONS OF THE PARTIES

Blakey contends that the government's numerous improper arguments violated his right to a fair trial and warrant reversal of his convictions. The government contends that although some the comments during summation were improper, Blakey was not denied a fair trial because the effect of the comments was harmless.

ISSUES

The sole issue we must decide is whether the government's comments during its closing argument prejudiced Blakey.

DISCUSSION

A. Prosecutor's Closing Argument

During closing argument to the jury, the prosecutor made three comments which prompted objections from defense counsel and curative instructions from the district court. In the first instance, the prosecutor stated that, "[t]he defense in all its ability to put on witnesses ... undertook the option of putting on a defense didn't show you a single person who is a friend, who said that he had been with Mr. Blakey at a store somewhere." Alluding to a prior instance in which defense counsel objected to the prosecutor's perceived attempt to burden-shift, defense counsel objected and asked for a cautionary instruction. In response, the district court asked, "Is that all you want?" to which defense counsel said, "yes." The district court delivered a cautionary instruction informing the jury that it is improper for the government to argue that the defendant maintains any burden to produce evidence at trial and that the defendant could properly rely on the presumption of innocence in his favor.

The prosecutor's second objectionable comment attacked Blakey's character, referring to his use of aliases and the fact that when arrested, three years after the offense, he possessed other people's credit cards: "But when a man uses all these different names to try to avoid being detected, that's an indication that there are some real problems. That's not what an honest person does." Further, the prosecutor argued: "This is not the conduct of somebody who is a forthright, upstanding person." ³ After defense counsel objected to the attack on Blakey's character, the district court instructed the jury to disregard the prosecutor's comments.

Finally, and most damaging, towards the end of his argument the prosecutor stated: "Ladies and gentlemen, this man is a professional, professional criminal." Following the prosecutor's summation, defense counsel moved for a mistrial, arguing that the comment prejudiced Blakey because he did not take the stand and no evidence was introduced Faced with the difficult task of repairing damage from the prosecutor's comment, while avoiding further damage, the court instructed the jury as follows:

                concerning Blakey's prior criminal record.  During the ensuing colloquy the prosecutor argued that his comment was not improper.  The court disagreed, but concluded that directing the jury to "disregard that statement, is about all I can do."   Defense counsel strenuously argued that the shortcomings of such an instruction would lead the jury to speculate about what evidence the government could have presented concerning Blakey's prior record
                

Ladies and gentlemen, the government has suggested to you in its summation that the defendant in this case is a professional criminal. That's a contention on the part of the government based on no evidence that has been offered before you. There has been no evidence whatsoever presented to you, who must decide this case, that the defendant is or is not a professional criminal. So I will tell you that you must disregard that statement, and you must continue with that presumption of innocence in favor of the defendant until such time if you--until such time, if ever, you find him guilty beyond a reasonable doubt. So please forget that contention or that statement of government counsel. [Emphasis added.] ⁴

Blakey contends that the prosecutor's closing argument, which included an improper burden-shifting statement, references to his character, and the characterization of him as a professional criminal warrants reversal. He argues that the cumulative effect of the prosecutor's improper closing remarks became overwhelming, requiring a mistrial. Furthermore, he argues that the court's curative instruction was insufficient because it did not rebut the notion that he was a professional criminal or a bad person.

As a preliminary matter, we note that Blakey was not a professional criminal and that the government conceded this at trial. In fact, during the discussion the prosecutor candidly admitted that Blakey's only prior convictions consisted of a credit card conviction and a failure to support. Thus, the prosecutor's comment went outside the evidence, and impugned Blakey's character with an inaccurate characterization. Such argument is clearly improper because it encouraged the jury to convict Blakey based on facts not admitted as evidence. Hutchins v. Wainwright, 715 F.2d 512, 516 (11th Cir.1983), cert. denied, 465 U.S. 1071, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984).

Moreover, a summary review of the court's charge to the jury convinces us that the instruction failed to blunt the damage that the prosecutor's comment caused because it did not rebut the inference that the prosecutor attempted to draw: Blakey was a professional criminal. Because of the nature of the prosecutor's improper comment,...