U.S. v. Monaghan, No. 83-2325

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 239 U.S. App. D.C. 275,741 F.2d 1434
• Docket Number: No. 83-00045,No. 83-2325
• Parties: UNITED STATES of America v. Eric J. MONAGHAN, Appellant. . Argued 18 May 1984. Decided 24 Aug. 1984. Appeal from the United States District Court for the District of Columbia (Criminal). John P. Dwyer, Washington, D.C., with whom James Klein, Washington, D.C., was on the brief, for appellant. Raymond C. Hurley, Asst. U.S. Atty., Washington, D.C., of the Bar of the District of Columbia Court of Appeals, pro hac vice by special leave of the Court, with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrel, Thomas J. Tourish, Jr. and Theodore A. Shmanda, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Before WILKEY and EDWARDS, Circuit Judges, and McGOWAN, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge WILKEY. Dissenting opinion filed by Circuit Judge HARRY T. EDWARDS. WILKEY, Circuit Judge: The propriety of the prosecutor's closing remarks to the jury, an issue raised not infrequently in appeals, is the question here. Appellant Monaghan contends that the prosecutor made impermissible references to his decision not to take the witness stand, and that the prosecutor attempted to inflame the passions and prejudices of the jury. We conclude that the statements in question did not infringe appellant's fifth amendment privilege against self-incrimination or due process rights; we therefore affirm the conviction. I. Appellant Eric Monaghan was charged in a six count 1 indictment with various offenses relating to sexual misconduct with 14-year-old Todd Bart. A jury found Monaghan guilty of taking indecent liberties with a minor 2 and committing oral-genital sodomy. 3 He was placed on probation, with special conditions, for three years. This sordid story begins with a chance encounter between Monaghan and Bart at a gay bar in Washington, D.C., in early September 1982. 4 Bart revealed to appellant that he was a runaway from a juvenile detention facility in Prince William County, Virginia; appellant disclosed to Bart that he was a polic
• Decision Date: 03 November 1983

Page 1434

741 F.2d 1434 239 U.S.App.D.C. 275 UNITED STATES of America
v.
Eric J. MONAGHAN, Appellant. No. 83-2325. United States Court of Appeals,
District of Columbia Circuit. Argued 18 May 1984.
Decided 24 Aug. 1984.

Page 1435

Appeal from the United States District Court for the District of Columbia (Criminal No. 83-00045).

John P. Dwyer, Washington, D.C., with whom James Klein, Washington, D.C., was on the brief, for appellant.

Raymond C. Hurley, Asst. U.S. Atty., Washington, D.C., of the Bar of the District of Columbia Court of Appeals, pro hac vice by special leave of the Court, with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrel, Thomas J. Tourish, Jr. and Theodore A. Shmanda, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WILKEY and EDWARDS, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKEY.

Dissenting opinion filed by Circuit Judge HARRY T. EDWARDS.

WILKEY, Circuit Judge:

The propriety of the prosecutor's closing remarks to the jury, an issue raised not infrequently in appeals, is the question

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here. Appellant Monaghan contends that the prosecutor made impermissible references to his decision not to take the witness stand, and that the prosecutor attempted to inflame the passions and prejudices of the jury. We conclude that the statements in question did not infringe appellant's fifth amendment privilege against self-incrimination or due process rights; we therefore affirm the conviction.

I.

Appellant Eric Monaghan was charged in a six count ¹ indictment with various offenses relating to sexual misconduct with 14-year-old Todd Bart. A jury found Monaghan guilty of taking indecent liberties with a minor ² and committing oral-genital sodomy. ³ He was placed on probation, with special conditions, for three years.

This sordid story begins with a chance encounter between Monaghan and Bart at a gay bar in Washington, D.C., in early September 1982. ⁴ Bart revealed to appellant that he was a runaway from a juvenile detention facility in Prince William County, Virginia; appellant disclosed to Bart that he was a police officer. ⁵ Bart agreed to rent a room from appellant for fifty dollars a week, whereupon the two retired to appellant's house on Capitol Hill. The next morning appellant performed oral sex and unsuccessfully attempted anal intercourse with Bart. ⁶

Bart stayed with appellant for almost two weeks. Although the pair slept together in appellant's bed, the record discloses no further incidents of sexual misconduct. They spent the weekend of September 10-12 with friends of appellant at a beach in Delaware, where they happened to meet two social workers from Prince William County. When the workers recognized Bart, he informed them that he had "gotten out of detention and [his] parents [had] let [him] come down to the beach for the weekend." ⁷ On the following Tuesday appellant brought home from work a computer printout showing Bart's status as a juvenile runaway. At appellant's suggestion, they telephoned Monedia Kaufman, Bart's probation officer. Appellant informed Ms. Kaufman that he operated a home for runaways and that Bart was staying there while he went to school.

Two days later Bart left appellant's house. He was subsequently apprehended by FBI agents while boarding a Trailways bus bound for New York. Upon his return to the Prince William County facility, Bart informed Ms. Kaufman of his stay with appellant. She later conveyed the information to an FBI agent. Arrest and a federal grand jury indictment ensued.

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In the jury trial presided over by U.S. District Judge Howard F. Corcoran, the government called a number of witnesses, of whom the most important by far was Todd Bart. Cross-examination of Bart was extensive, with defense counsel making repeated attempts to impugn the youth's credibility. ⁸ The defense called two minor witnesses to the stand, but not appellant.

II.

Monaghan contends that certain remarks by the prosecutor in his closing statement to the jury constituted impermissible comments on his failure to take the witness stand. We conclude that the remarks were not improper.

The fifth amendment protects the right to be free from compelled self-incrimination. ⁹ A corollary of that right, essential to its effective exercise, is that the government in a criminal proceeding may not adversely comment on an accused's silence. ¹⁰

The difficulty for a reviewing court lies in determining whether the prosecutor has strayed beyond the rhetoric permissible in "the heat of argument" ¹¹ and into the realm of the constitutionally infirm. That a prosecutorial statement may in retrospect appear ill-advised or unfortunate does not necessarily render it unconstitutional. ¹²

Numerous decisions of this and other courts have defined the contours of the constitutional right to be free from adverse prosecutorial comment. A court must determine "whether, in the circumstances of the particular case, 'the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.' " ¹³

Appellant offers no reason for believing that the prosecutor's statements were "manifestly intended ... to be a comment" on appellant's silence, nor does the record suggest such intent. When assessing the constitutionality of ambiguous prosecutorial remarks, an appellate court should not strain to reach the one interpretation which ascribes improper motives to the prosecutor. The government here was faced with an unenviable task. In order to prevail, it had to establish beyond a reasonable doubt that sexual misconduct had occurred between Monaghan and Bart in the privacy of Monaghan's bedroom, without once alluding to the fact that Monaghan had not taken the witness stand. Under these circumstances, virtually any reference to the illegal act could be interpreted as a reflection on appellant's silence. But such a hypertechnical reading of the prosecutor's language is neither mandated nor

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allowed under the prevailing legal standard for appellate review of prosecutorial comments. Instead, as our decisions establish, we must confine our inquiry to the intent of the prosecutor and the objective effect the remarks would have had on a reasonable juror. Taking into account the unusual circumstances of this case, we consider it much more likely that the prosecutor intended his remarks to be a defense of Bart's credibility than an allusion to appellant's silence.

We turn, then, to the second prong of the test, the effect which the statements "naturally and necessarily" would have had on the jury. This objective standard would clearly have been violated had the prosecutor commented directly on the failure of the appellant to testify. Under such circumstances, a jury might reasonably have construed the comment as an invitation to consider appellant's silence in assessing his guilt or innocence. At most, however, the prosecutor's statements in the present case constituted "only an indirect reference to appellant's failure to testify." ¹⁴ The likelihood that prejudice occurred is correspondingly diminished.

Even indirect comments can have the proscribed effect on a jury, but we believe that in this case they did not. The most significant of those remarks was the prosecutor's reference, in his closing argument, to the "uncontradicted" character of Todd Bart's testimony:

So, where in the evidence, ladies and gentlemen, is the proof of guilt in this proceeding?

Well, ladies and gentlemen, I would suggest to you first and principally it comes from the testimony, the oral sworn testimony, of Todd Dunning Bart. His evidence is uncontradicted at this point that he had sex with Eric Monaghan.

Now, when you listen to defense counsel they may argue to you that there, indeed, were contradictions. But listen to their argument carefully. I invite you to do that, please. And, you listen for the part of their argument that directs your attention to any evidence that you have heard or seen that contradicts Todd Bart that he had sex with Eric Monaghan. ¹⁵

If appellant were the only person capable of contradicting Bart's testimony, the jury might logically have construed the prosecutor's statement as an allusion to appellant's silence. ¹⁶ But this was not the case. While Bart and Monaghan were the only persons present when the sex acts allegedly occurred, there were other witnesses who could testify as to whether the sexual misconduct in fact took place. Indeed, notwithstanding the prosecutor's characterization of Bart's direct evidence as "uncontradicted," there was testimony to the effect that appellant had not had sex with Bart.

Monedia Kaufman testified that, in her first and second conversations with Bart following his return to the detention facility, the youth made no mention of a homosexual encounter with Monaghan. In a subsequent conversation, Bart initially denied having had sex with appellant; only when Kaufman expressed disbelief did Bart concede that "maybe" he and Monaghan had slept together. ¹⁷ Moreover, in a statement which he had given to the Public Defender Service, and from which excerpts were read in court, Bart himself recounted telling two of his friends that he had never had sex with appellant. ¹⁸ Defense counsel relied on both Kaufman's testimony and the Public Defender statement for the

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proposition that the alleged sex acts had not occurred. ¹⁹ Admittedly, both pieces of testimony were unconvincing in light of the overwhelming evidence against appellant; but this was a question of evidentiary weight properly resolved by the jury. The significance of the testimony lies not in its credibility (or lack thereof), but in the fact that witnesses other than appellant could and did contradict Bart's principal testimony. ²⁰

The prosecutor's statement was proper for another...