U.S. v. Thompson, 05-1824.

• Citation: 449 F.3d 267
• Decision Date: 07 June 2006
• Docket Number: No. 05-1824.,05-1824.
• Parties: UNITED STATES of America, Appellee, v. Kurt H. THOMPSON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

449 F.3d 267

UNITED STATES of America, Appellee, v. Kurt H. THOMPSON, Defendant, Appellant.

No. 05-1824.

United States Court of Appeals, First Circuit.

Heard March 6, 2006.

Decided June 7, 2006.

COPYRIGHT MATERIAL OMITTED

Edward S. MacColl, with whom Thompson, Bull, Furey, Bass & MacColl, LLC, P.A., was on brief, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before LIPEZ, Circuit Judge, CYR and STAHL, Senior Circuit Judges.

CYR, Senior Circuit Judge.

Defendant Kurt H. Thompson challenges the district court order convicting him of conspiring to distribute and possess with intent to distribute 500 or more grams of cocaine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), 846. We affirm.

I BACKGROUND

In 2003, Justin Canney began purchasing large supplies of high-purity, uncut cocaine from Jason Higgins in New York for resale in Maine. Defendant Thompson soon began purchasing from five to twenty ounces of cocaine per week from Canney, which he resold to his own customers, whom he identified, inter alia, as "Jared," "Dan," and Frank Cicero, who was also a customer of Canney's. Cicero in turn resold the cocaine he acquired from Canney and Thompson to his own clients. Subsequently, however, Cicero and Thompson had an argument, and Cicero informed Canney that he henceforth would purchase cocaine only from him, and not from Thompson. Eventually Canney asked Thompson to "cut" the pure cocaine (viz., add fillers to increase the volume and the street value of the drug) which Canney received from New York, because Canney was worried that his live-in girlfriend might discover his drug dealing. Canney's illicit activities eventually became the focus of a United States Drug Enforcement Agency (DEA) investigation, during which his house and person were placed under surveillance.

In May 2004, Canney sold Thompson two and one-half ounces of pure cocaine, and asked that Thompson return it to him "cut," for resale to Cicero. On May 3, Thompson arrived at the Canney residence with five ounces of cut cocaine. Canney concealed the cocaine in a false-bottom cannister, and he and Thompson drove away in Canney's car to deliver the drugs to Cicero. After Canney committed several traffic violations, the police, who were cooperating with the DEA investigation, stopped the vehicle and with Canney's consent, performed a limited search of the vehicle. No incriminating evidence was disclosed. As planned, the police then allowed Canney and Thompson to drive off, followed by undercover DEA agents. Immediately, Canney made several evasive driving maneuvers, drove to a vacant lot, and placed several cell phone calls.

In due course, Canney and Thompson stopped at a restaurant for lunch. Undercover agents managed to station themselves near the Canney and Thompson table, and overheard their conversation. Thompson stated that he was "freaked out" by the traffic stop, and when Canney told Thompson how to dispose of cocaine quickly (viz., dissolving it in water), Thompson stated that he had "tucked" the evidence during the traffic stop. Upon exiting the restaurant, Canney and Thompson were placed in custody. Thompson was found to have $3000 in cash.

After questioning Canney and Thompson, the DEA agents decided to arrest Canney, but released Thompson due to insufficient evidence that he had been involved in the ongoing drug distribution engaged in by Canney. Canney eventually entered into a plea agreement to testify as to Higgins' and Thompson's participation in Canney's drug enterprise. The government sent Thompson a target letter, and on July 2, 2004, Thompson was arrested, and later indicted on one count of conspiring to distribute and possess, with intent to distribute, 500 grams or more of cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), 846. Following a two-day jury trial, Thompson was found guilty. He now appeals from the ensuing judgment of conviction.

II DISCUSSION

A. The Fifth Amendment Claim

Thompson contends that the district court abused its discretion in denying the motion for mistrial made after DEA Special Agent Wolf testified that, following Thompson's arrest, "[Thompson] declined to make much of any statement." Thompson maintains that Wolf's testimony constituted an improper and unfair comment on Thompson's Fifth Amendment right not to be compelled to be a witness against himself.

During direct examination, the government asked Agent Wolf: "And what is it that [defendant] told you back at the police station?" Wolf answered: "He declined to make much of any statement other than . . ." The district court sustained defense counsel's objection, and Wolf continued with his testimony. Government counsel then asked: "Did [defendant] say anything to you?" Wolf responded: "That they [Thompson and Canney] were going to meet Cicero." Wolf then testified as to Canney's comments and actions on May 3, 2004. Only then did defense counsel move for a mistrial or for a cautionary instruction based on Wolf's comment that Thompson had "declined to make much of any statement." The district court denied the motion for mistrial, agreed to give a cautionary instruction, but warned defense counsel that such an instruction might cause the jury to focus on Wolf's comment more than it had already done so. Defense counsel advised the court that the defense did not want the curative instruction.

The defendant has a constitutional right to remain silent following arrest, and it is inappropriate for the government intentionally to make or solicit comments concerning a defendant's exercise of that right. See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); United States v. Figueroa-Encarnacion, 343 F.3d 23, 33 (1st Cir.2003). Any such comment improperly invites the jury to infer from the defendant's silence that he had something to hide. When a defendant challenges such a comment, the district court must inquire "`(w)hether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'" Id. (citation omitted). Where the comment is ambiguous, however, we will not lightly infer either that the government intended, or that the jury necessarily drew, the most prejudicial meaning. See United States v. Taylor, 54 F.3d 967, 979 (1st Cir.1995); United States v. Lilly, 983 F.2d 300, 307 (1st Cir.1992). Moreover, even if we were to respond to such a query in the affirmative, we would not reverse where the government demonstrates that the comment was harmless beyond a reasonable doubt. See United States v. Mooney, 315 F.3d 54, 61 (1st Cir.2002); Lilly, 983 F.2d at 308-09 (noting that new trial is warranted only "where `the offending conduct so poisoned the well that the trial's outcome was likely affected' or when, alternatively, `the breach was so egregious that reversal becomes a desirable sanction to forestall future prosecutorial trespasses'") (citation omitted). Finally, pertinent to the harmless-error analysis would be, inter alia, "`the severity of the misconduct, whether it was deliberate or accidental, the context in which it occurred, the likely curative effect of the judge's admonitions and the strength of the evidence against the defendant.'" Id. at 308 (citation omitted).

We conclude that the district court committed no manifest abuse of discretion in denying the Thompson motion for mistrial. See United States v. Rullan-Rivera, 60 F.3d 16, 18 (1st Cir.1995); Lilly, 983 F.2d at 308 (noting that district court is in better vantage to determine if any harm resulting from the comment necessitates mistrial). "[R]emarks must be examined in context rather than in isolation in order to ascertain if Fifth Amendment concerns are implicated." Id. at 307. Here, there is no evidence that the prosecutor intentionally solicited the Wolf comment. In fact, since the prosecutor had asked Wolf what Thompson had told him at the police station, Wolf's answer was non-responsive. Further, Wolf did not state that Thompson refused to make a statement, but that he did not make "much" of a statement. See Kibbe v. DuBois, 269 F.3d 26, 38-39 (1st Cir.2001) (noting case law holding that in some circumstances, once defendant waives his right to remain silent and makes a statement, it may be permissible to comment on what statements he did not make). Before Wolf could elaborate, however, the district court sustained defense counsel's objection. No further comment was made on the matter. See Lilly, 983 F.2d at 307 (noting that improper comment was less likely to cause harm where it was an "isolated instance" during a long trial).

Several minutes later, defense counsel abruptly moved for a mistrial,¹ and the district court offered to give a curative instruction. See United States v. Freeman, 208 F.3d 332, 339 (1st Cir.2000) ("Where `a curative instruction is promptly given, a mistrial is warranted only in rare circumstances implying extreme prejudice.'") (citation omitted); United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993) ("[C]ourts have long recognized that, within wide margins, the potential for prejudice stemming from improper testimony or comments can be satisfactorily dispelled by appropriate curative instructions."); cf. Mooney, 315 F.3d at 61 (noting that improper comment on defendant's silence was cured by emphatic and prompt curative instruction); Lilly, 983 F.2d at 308 (same). Defense counsel voluntarily declined this offer after the court cautioned that an instruction might invite the jury to focus on the Wolf comment more than it had when the comment was made. See United States v. Brandon, 17 F.3d 409, 446 (1st Cir.1994) ("The level of prejudice, if any, was not sufficiently significant to overturn the judge's decision to accept the defendants' tactical choice to forgo more appropriate methods of addressing the...