United States v. Madsen

• Decision Date: 08 January 2016
• Docket Number: No. 15–1353.,15–1353.
• Citation: 809 F.3d 712
• Parties: UNITED STATES of America, Appellee, v. Lawrence MADSEN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

809 F.3d 712

UNITED STATES of America, Appellee,

v.Lawrence MADSEN, Defendant, Appellant.

No. 15–1353.

United States Court of Appeals, First Circuit.

Jan. 8, 2016.

Tina Schneider on brief for appellant.

Donald Feith, Acting United States Attorney, and Charles L. Rombeau, Assistant United States Attorney, on brief for appellee.

Before KAYATTA, SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Lawrence Madsen asserts that the prosecutor's statements during closing argument in his criminal trial misstated the evidence, amounted to proscribed comments on his failure to testify, and improperly shifted the burden of proof. He further asserts that the district court abused its discretion in imposing a variant sentence above the guideline sentencing range (GSR). Finding these claims to be without merit, we affirm the defendant's conviction and sentence.

I. BACKGROUND

In August of 2014, a federal grand jury sitting in the District of New Hampshire charged the defendant with seven counts of aiding and abetting the making of material false statements in connection with the acquisition of firearms. See18 U.S.C. §§ 2, 922(a)(6), 924(a)(2). The indictment addressed a series of seven gun purchases (involving a total of nine guns) by a codefendant, Bretton Crawford. Crawford eventually pled guilty and thereafter cooperated with the government. The defendant, however, stood his ground.

We rehearse the key facts as the jury could supportably have found them at trial. See United States v. Gobbi, 471 F.3d 302, 305 (1st Cir.2006). Crawford testified that he had purchased the guns identified in the indictment as a "straw" for the defendant, falsely describing himself on federal forms as the real buyer. According to Crawford, the defendant (a Massachusetts resident) relied on Crawford's ability to purchase firearms in New Hampshire in order to acquire weapons that he (the defendant) could then re-sell illicitly to third parties. The defendant funded Crawford's purchases and, in addition, paid him a $100 emolument for each firearm.

Crawford's version of events was corroborated in substantial part by the dealers from whom he purchased the guns. It was also corroborated by text messages between Crawford and the defendant, text messages between the defendant and a third party, and a surveillance video showing Crawford and the defendant together in a gun shop. The defendant did not testify.

At the close of all the evidence, the jury convicted the defendant on six of the seven counts. During the sentencing hearing, the district court set the defendant's base offense level at twelve; added a four-level enhancement because the offense conduct involved between eight and twenty-four weapons, see USSG §§ 2K2.1(a)(7), (b)(1)(B); and placed the defendant in criminal history category I. Although these calculations yielded a GSR of 21 to 27 months, the court varied upward and imposed a 36–month term of immurement. This timely appeal followed.

II. ANALYSIS

In this venue, the defendant raises claims of both trial and sentencing error. We consider these claims sequentially.

A. The Prosecutor's Closing Argument.

Grasping the defendant's claim of trial error requires some additional background. In his opening statement, defense counsel began by telling the jury:

This is Larry Madsen. Larry is innocent of these charges, ladies and gentlemen. He didn't do what the government has accused him of doing, and I'm going to talk to you a little about the evidence in the case.

A few moments later, defense counsel returned to this theme, declaring: "Well, Larry didn't do it. He's not guilty of these crimes." Later, defense counsel spoke as if the words were coming from the defendant:

[H]e told [the police], yeah, I know Bretton Crawford. He's my friend. And, yeah, I went with him on several occasions when he purchased guns, but I didn't give him money. I didn't ask him to go buy guns for me. I didn't tell him what guns to buy. I didn't do it.

We fast-forward to the government's closing argument. There, the prosecutor reviewed the evidence introduced at trial. Near the end of his argument, the prosecutor reminded the jury of defense counsel's opening statement:

Now, the judge has told you and I'll repeat, a defendant has no obligation to put on any evidence of any kind. But I would say it's fair to at least think about what was told to you in the opening. The defendant's opening said, quote, I am innocent. Quote, he did not do it.

So you should think about that when you look at the evidence. Is the defendant innocent? Did he not do it?

Let's consider the evidence that I've told you in teasing that out. Is he innocent. Did he not do it.

The defendant did not contemporaneously object to any of these remarks. Thus, our review of the challenge that he raises for the first time on appeal is for plain error. See United States v. Taylor, 54 F.3d 967, 972–73 (1st Cir.1995).

To obtain relief under this standard, a defendant must demonstrate "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). This is a difficult hurdle to vault: plain error review exists to correct "blockbusters," not "the ordinary backfires ... which may mar a trial record." United States v. Griffin, 818 F.2d 97, 100 (1st Cir.1987).

The defendant marshals a trio of contentions stemming from the prosecutor's closing argument. None of these contentions is persuasive.

1. Mis-quotation. To begin, the defendant suggests that the prosecutor's mis-quotation of defense counsel's opening statement constituted prosecutorial misconduct. The premise that underlies this suggestion is sound: an incorrect recitation of either the evidence or the record in a closing argument may constitute prosecutorial misconduct. See United States v. Azubike, 504 F.3d 30, 38 (1st Cir.2007). In this context, "misconduct" is not limited to "deliberate wrongdoing," but may include "a statement of fact that is mistaken or unsupported by any evidence." Id.

Nevertheless, the conclusion that the defendant would have us draw from this premise is questionable. Especially under plain error review, we must assess the prosecutor's statements "within the context of the case as a whole." United States v. Pires, 642 F.3d 1, 14 (1st Cir.2011). Such an assessment requires us to consider "the frequency and deliberateness of the prosecutor's comments, the strength and clarity of the trial judge's instructions, and the strength of the government's case against the defendant." United States v. Morales–Cartagena, 987 F.2d 849, 854 (1st Cir.1993).

Viewed through this lens, the defendant's claim of error cannot withstand scrutiny. First and foremost, the substantive difference between the versions is barely visible to the naked eye. The prosecutor appears to have conflated two of defense counsel's statements—"Larry is innocent" and (speaking in the defendant's voice) "I didn't do it"—into the unitary phrase "I am innocent." It is hard to conceive of such a minor alteration as a basis for a finding of prosecutorial misconduct. After all, the prosecutor's statement accurately conveyed the essence of what defense counsel had said.

Furthermore, the mis-quotation was a one-time occurrence, and there is no indication that it was deliberate. In addition, the district court made clear to the jury, both at the beginning and at the end of the trial, that statements by counsel were not evidence. Those lucid instructions dissipated any realistic threat of prejudice. See, e.g., Pires, 642 F.3d at 15 ; United States v. Ortiz, 447 F.3d 28, 36 (1st Cir.2006) ; Morales–Cartagena, 987 F.2d at 855. And, finally, the government's case against the defendant was robust. Under these circumstances, it is fanciful to suggest that the prosecutor's trivial mis-quotation amounted to plain error.

2. Failure to Testify. Taking a different tack, the defendant asseverates that the excerpted portion of the prosecutor's closing argument comprised an improper comment on his failure to testify. We discern no plain error.

It is, of course, common ground that "[c]omment by a prosecutor on a defendant's failure to testify violates the Fifth Amendment guarantee against self-incrimination." United States v. Wihbey, 75 F.3d 761, 769 (1st Cir.1996). Where, as here, the allegedly infringing comment is not explicit, an inquiring court must examine whether "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." United States v. Vázquez–Larrauri, 778 F.3d 276, 286 (1st Cir.2015) (quoting United States v. Newton, 327 F.3d 17, 27 (1st Cir.2003) ). As this test implies, much depends on context. See United States v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir.1993). And when—as in this case—no contemporaneous objection occurred, "it seems fair to give the arguer the benefit of every plausible interpretation of her words." Id.

In the case at hand, there is nothing to suggest a manifest intent to comment on the defendant's silence. Nor is there anything to suggest that the jurors would naturally and necessarily have taken the challenged statement as a comment on the defendant's failure to testify. Fairly viewed, the prosecutor's closing was not designed to criticize the defendant's failure to testify but, rather, was designed to refocus the jury's attention on the trial evidence. The most natural understanding of the challenged statement is as a reference back to the words used by defense counsel in his opening statement. Giving the arguer the benefit of the interpretive doubt, see id., there was no plain error.

3. Burden of Proof. In a final variation on his theme, the defendant complains that the prosecutor's remarks improperly shifted the burden of proof. This...