United States v. Flournoy

• Decision Date: 23 November 2016
• Docket Number: No. 14-2325,14-2325
• Citation: 842 F.3d 524
• Parties: United States of America, Plaintiff-Appellee, v. Michael Flournoy, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

842 F.3d 524

United States of America, Plaintiff-Appellee,

v.Michael Flournoy, Defendant-Appellant.

No. 14-2325

United States Court of Appeals, Seventh Circuit.

Argued September 15, 2016

Decided November 23, 2016

John G. McKenzie, Attorney, Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before Flaum, Manion, and Hamilton, Circuit Judges.

Manion, Circuit Judge.

Following a jury trial, Michael Flournoy was convicted of one count of conspiring to possess cocaine and one count of attempting to possess cocaine. Flournoy appeals, claiming he is entitled to a new trial because the prosecutor made inappropriate comments during closing argument and because the government presented testimony from a cooperating witness that conflicted with that witness's plea agreement. Flournoy also claims that the district court erred in adding several discretionary conditions to the terms of his supervised release without explanation. We affirm Flournoy's conviction, but remand for resentencing.

I .

In July 2012, the defendant, Michael Flournoy, met Jose Sanabria. During their first meeting, Flournoy discussed hiring Sanabria to do some construction work, but later Flournoy expressed interest in buying cocaine and heroin and offered to pay Jose a finder's fee if he found a source. A couple of days later, Jose told Flournoy that his brother, Cesar Sanabria, could help him get cocaine.

On July 27, 2012, Jose met with Flournoy and Flournoy showed Jose the money ($186,000) he intended to use to purchase the drugs. A few days later, on July 30, 2012, Jose told Flournoy that the supplier was ready and they agreed to meet at Cesar's apartment. There the three counted the buy money and Flournoy put it in the trunk of his silver Honda. Flournoy, Jose, and Cesar, along with Cesar's girlfriend, Jovita, drove from Chicago to Rockford for the planned cocaine deal. Unfortunately for them, they did not know that the supplier was an undercover officer.

That undercover officer, Bob Juanez, had started talking with Cesar about a week earlier about supplying cocaine. In a recorded conversation, Cesar and Agent Juanez discussed Cesar selling marijuana to Agent Juanez and Agent Juanez selling cocaine to Cesar. Following several more recorded calls, Cesar agreed to buy six kilograms of cocaine from Agent Juanez.

Returning to July 30, 2012: Cesar and Jovita drove to Rockford, Illinois, in a Chevrolet Tahoe. Flournoy and Jose followed in Flournoy's silver Honda. According to Cesar, the money was in the trunk of the Honda. Agent Juanez met Cesar at a Mobil gas station and then they drove to a Holiday Inn, followed by Flournoy and Jose.

At the Holiday Inn, Cesar briefly spoke with Agent Juanez inside the agent's pickup truck. Cesar then exited the truck and got in Flournoy's Honda before returning to the pickup truck. At that point, Agent Juanez called his partner, Detective Barrios, who was posing as his wife, and she drove by the pickup truck and showed Cesar an ice cooler containing what appeared to be cocaine.

In the meantime, ATF Special Agent John Richardson and Winnebago County Sheriff's Deputy Kyle Boomer were watching the drug deal go down from inside a surveillance van. Special Agent Richardson testified that he saw Flournoy go to the trunk of the silver Honda, get out a black bag and put green-wrapped bundles in the bag and then place the black bag in the back seat of the Honda. After this everyone relocated to a Wal-Mart parking lot. At this point, Flournoy exited the Honda with the black bag containing the buy money and dumped the money into the undercover agent's pickup truck. Agent Juanez then pretended to call his wife to instruct her to bring over the cocaine, but that was really the arrest signal. Officers then arrested Flournoy, Cesar, and Jose.

The government charged Flournoy, Cesar, and Jose with conspiring to possess with intent to distribute six kilograms of cocaine and attempting to possess cocaine, in violation of 21 U.S.C. § 846. That same day, from jail, Flournoy called his wife and told her to move a jack from their garage into the alley for a scrap salvager to remove. FBI agents went to the Flournoys' home and found in the alley a drug press—a piece of hydraulic equipment used to package drugs. A DEA chemist tested the filter of the press and obtained positive results for the presence of both heroin and cocaine.

Cesar and Jose eventually both pleaded guilty to the charges. Jose testified at Flournoy's trial, but Cesar did not. During trial, Jose testified as laid out above. Of significance for this appeal, Jose testified that Flournoy had moved the black bag with the buy money from the Honda trunk to the inside of the car. However, Jose's plea agreement stated "[t]he defendant pulled out bundles of cash from the trunk of the Honda, put the cash into a duffle bag, and returned the bag to the trunk." During the Rule 11 colloquy, the prosecutor quoted that statement from the plea agreement and Jose, under oath, stated it was correct. Cesar's plea agreement similarly identified Jose as the individual who had retrieved the money from the trunk of the Honda. While the government had provided the plea agreements to Flournoy's attorney, the attorney did not cross-examine Jose on this inconsistency during Flournoy's trial.

During closing argument, Flournoy's attorney repeatedly commented upon the government's failure to call certain witnesses. For instance, his attorney argued: "Yet you sit here today never having heard a peep from Deputy Boomer, Deputy Boomer not coming in to tell you anything regarding this investigation or to support and corroborate what Agent Richardson said. Just gone. Not brought in." He continued: "You have to see and ask whether or not that witness is somebody that should be brought in, somebody that you should hear from to support." Later his attorney stressed this point again, stating: "The government had the job to present you with all of the relevant evidence, and they failed to do that. The[y] failed to do that from bringing forth officers that were leading the investigation."

In its closing argument, the prosecutor responded by stating: "Now, the government has the burden, but ladies and gentlemen, the defense can call witnesses too, if they want." Flournoy's attorney objected, stating that "a defendant has an absolute right not to testify or present evidence." Following arguments outside the jury's presence, the district court overruled the objection. After the jury returned, the district court read the following instruction to the jury, "A defendant has an absolute right not to testify or present evidence. You may not consider in any way the fact that the defendant did not testify or present evidence. You should not even discuss it in your deliberations."

The prosecutor then returned to its closing argument, stating:

As I indicated, the burden is on the United States. We accept that burden. The defense has no, no obligation to present testimony in any form. However, they do have the same subpoena powers as the United States, and if they wanted to subpoena in and to have testify surveillance agents, telephone records person, or anybody else, they could have done that if they had wanted to, if they had thought it would have been appropriate or helpful. Granted, they don't have the burden to do so, but they do have the power to do so.

Without objection, the prosecutor also stated:

Ladies and gentlemen, you're here as a jury because we don't try people based upon hiding the ball. We try people based upon the facts. Not what ifs, not maybes, not could-have-beens. The United States would not bring a case based upon that because it wouldn't work. We bring cases built upon facts, facts adduced by testimony and by witnesses and by exhibits, and that's what you need to focus on.

Following deliberations, a jury convicted Flournoy on all counts. The district court then sentenced him to 204 months' imprisonment, followed by concurrent terms of five years' supervised release. In addition to the mandatory conditions of supervised release, the district court imposed several additional discretionary conditions of release. Flournoy filed a motion for a new trial, arguing the evidence was insufficient to support his conviction, that the government's closing argument was improper, and that the government knowingly used perjured testimony. The district court denied the motion for a new trial. Flournoy appeals.

II.

A. Motion for a New Trial

On appeal, Flournoy argues that the district court erred in denying his motion for a new trial under Federal Rule of Criminal Procedure 33. That rule provides that a trial court "may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). This court reviews a district court's denial of a motion for a new trial under Rule 33 for an abuse of discretion. United States v. Kuzniar , 881 F.2d 466, 470 (7th Cir. 1989).

In support of his argument that he is entitled to a new trial, Flournoy asserts first that prosecutorial misconduct deprived him of his due process rights to a fair trial. When considering allegations of prosecutorial misconduct, this court first determines whether the prosecutor's conduct was improper, and, if so, we must evaluate the conduct "in light of the entire record" to determine if it deprived the defendant of a fair trial. United States v. Smith , 674 F.3d 722, 728 (7th Cir. 2012).

Flournoy's claim of prosecutorial misconduct focuses on two comments made by the government during closing argument. First, he maintains the prosecutor engaged in misconduct by highlighting that Flournoy could call witnesses to testify. Flournoy argues that this line of argument wrongly shifted the burden of proof to Flournoy.

This argument is misplaced. "[...