US v. Rapanos, 93-CR-20023-DT.

• Decision Date: 03 August 1995
• Docket Number: No. 93-CR-20023-DT.,93-CR-20023-DT.
• Citation: 895 F. Supp. 165
• Parties: UNITED STATES of America, Plaintiff, v. John A. RAPANOS, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

895 F. Supp. 165

UNITED STATES of America, Plaintiff, v. John A. RAPANOS, Defendant.

No. 93-CR-20023-DT.

United States District Court, E.D. Michigan, Southern Division.

August 3, 1995.

Janet L. Parker, Asst. U.S. Atty., Bay City, MI, for plaintiff.

David R. Skinner, John L. Wildeboer, Bay City, MI, for defendant.

MEMORANDUM OPINION AND ORDER

ZATKOFF, District Judge.

I. INTRODUCTION

This matter is before the Court on the defendant's Motion for Acquittal or for New Trial. The government has filed a response, to which the defendant has replied. This Court finds that the facts and the legal arguments are adequately presented in the briefs, and that the decisional process would not be significantly aided by oral arguments. Accordingly, the motion before this Court will be disposed of upon the briefs submitted by the parties. See E.D.Mich.Local R. 7.1(e)(2). For the reasons set forth below, defendant's Motion for a New Trial is GRANTED.

II. BACKGROUND

Defendant John Rapanos was charged in a four-count Superseding Indictment. Counts I and IV alleged that defendant engaged in the knowing discharge of pollutants into waters of the United States, that is, wetlands located in Williams Township, Bay County, Michigan, in violation of 33 U.S.C. § 1131(a) and § 1319(c)(2)(a); and 18 U.S.C. § 2. Counts II and III alleged that defendant threatened and intimidated a witness with intent to induce the witness to withhold documents from an official proceeding, in violation of 18 U.S.C. § 1512(b).

Following a mistrial declared in July, 1994, the case was transferred to Flint and subsequently retried beginning February 1, 1995. During trial, the Court granted defendant's Motion for Acquittal on Counts II and III. On March 7, 1995, the jury returned a verdict of "Guilty" on Counts I and IV. The instant motion followed.

III. OPINION

A. Applicable Standards of Review

1. Federal Rule of Criminal Procedure 29

Motions for Judgment of Acquittal are brought pursuant to Fed.R.Crim.P. 29. Rule 29 states, in pertinent part:

(c) Motion after Discharge of Jury.

If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal ...

Id.

2. Federal Rule Criminal Procedure 33

Fed.R.Crim.P. 33 states, in pertinent part:

Rule 33. New Trial

The court, on motion of a defendant may grant a new trial to that defendant if required in the interest of justice ... A motion for a new trial shall be made within 7 days after verdict or finding of guilty or within such other time as the court may fix during the 7 day period.

Id.

3. Federal Rule Criminal Procedure 52

Fed.R.Crim.P. 52 states:

Harmless and Plain Error

(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

Id.

B. Analysis and Discussion

On February 15, 1995, during the defendant's case-in-chief, defendant John A. Rapanos took the stand and testified in his own behalf. On cross examination, the prosecution, pursuing a line of questioning that addressed the inspection of the property and attempted warrantless entry of the property by Michigan Department of Natural Resources Officers ("DNR") on August 22, 1989, asked Rapanos the following series of questions:

Q: And this August 30th meeting, again, you had not let the DNR on the property?

* * *

A: He Jake Allen, Defendant's attorney told them just point blank, you will not be allowed on the property.

Q: And you agreed with that?

A: He said you cannot go on the property without a search warrant, I think.

Q: And you said the same thing?

A: nonresponsive

Q: I would like you to answer the question, though. You also told the DNR that they could not go back on the property without a search warrant?

A: I didn't say those words.

Q: Words to that effect?

A: No.

Q: Since you were certain in your own mind that there were no wetlands there, why not let the DNR on the property?

A: It's not my decision.

Q: Were you practicing concealment again?

A: They could get a search warrant, Miss Parker, and they could go out there the next day if they wanted to. We couldn't stop them, okay.

There's no concealment. They know the procedure. First of all, they were trespassing on our property. Jake was very upset about that. He said, look, you don't go on any of our properties ever again. Don't you dare go on there without our permission or a search warrant. That's what was said at that meeting.

Q: So were you practicing concealment, or not?

* * *

Q: So you weren't willing to say, don't worry, I have nothing to hide, let them on?

A: I don't think that ever came up.

Q: All right. And as a client, you have the ability to do that; right? To say to your attorney, look, go ahead, let them on.

A: I learned a long time ago, that if you don't take your attorney's advice, you shouldn't have him....

Q: So the bottom line is, though, you knew that you could talk to him about that and try to convince him to do that and you chose not to?

A: It didn't happen.

Tr. Feb. 15, 1995, pp. 95-97. See generally pp. 87-98.

At the time of the cross examination, the Court was deeply concerned about the prejudicial effect of such questioning, finding it akin to comments regarding a defendant's silence following Miranda warnings. The Court was prepared to offer a curative instruction, however, the questioning proceeded without objection from the defense.

During the course of the trial the objections from each side had been so numerous, that, when defense counsel failed to object, the Court was loath to interfere. It was the perception of the Court at the time that the decision not to object must have been strategic, and it is generally the Court's policy to allow attorneys latitude in the manner of presentation of their cases. Upon consideration and review, the Court finds that it was plain error to allow the discourse to continue.

The Court is aware that "to be plain, an error must be conspicuous, at least in hindsight." United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985). The Court further recognizes that the "plain error exception to the contemporaneous-objection rule is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985). While Fed.R.Crim.P. 52(b) is primarily a tool of appellate courts, used to review issues first raised on appeal, the Court notes that Rule 52(b) is not limited by its terms to such application.¹

The Supreme Court has addressed cases in which the defendant was severely prejudiced by comments and arguments relating to his exercise of his Fifth Amendment right to refuse to testify, or to remain silent following advisement of his Miranda rights. See, e.g. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Similarly and more recently, courts have applied the "plain error" standard to comments and arguments addressing a defendant's refusal to consent to a warrantless search. See e.g. United States v. Mazzone, 782 F.2d 757 (7th Cir.1986); United States v. McNatt, 931 F.2d 251 (4th Cir.1991). Particularly instructive is United States v. Thame, 846 F.2d 200 (3rd Cir.1988), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 333 (1988).

In Thame, the prosecution argued to the jury that the defendant's refusal to allow a full search of his luggage was evidence that he knew the bag contained cocaine. Id. at 205. The Thame court reasoned that the prosecutor's argument — which suggested that exercise of the fourth amendment right to be free from warrantless searches was evidence of guilt — was similar to (1) the comments regarding a defendant's silence as evidence of guilt, challenged in Griffin, supra, and (2) comments regarding a defendant's exercise of the sixth amendment right to counsel as evidence of guilt. Id. at 206; see United States v. McDonald, 620 F.2d 559 (5th Cir.1980). For the limited analysis involving prosecutorial comment, the Thame court "saw little, if any valid distinction ..." between comments regarding the exercise of Fourth, Fifth or Sixth Amendment rights. 846 F.2d at 206. This Court agrees.

The Thame court concluded that, on the specific facts in question, the comments did not rise to a constitutional dimension, and did not constitute "plain error." Id. at 207. This Court notes that aggravating factors exist which both distinguish the instant case from Thame, and also make it more troublesome.

First, in the case at bar, the prosecution's questions were asked in the midst of the taking of evidence from the defendant himself, a critical portion of the trial. The comments were not made during opening statements or closing arguments, about which the jury is always admonished that "the attorneys comments are not evidence." Rather, the defendant himself was forced to defend his exercise of his constitutional right. In fact the questioning concluded with the defendant being asked why he hadn't convinced his attorney that he should waive his Fourth Amendment right. In Doyle, supra, the Supreme Court reversed and remanded where the prosecutor asked the defendant to explain his silence at the time of arrest. 426 U.S. at 613-16, 96 S.Ct. at 2243. In addition to the questions, the prosecution insinuated through questions, if not argued, that when the defendant refused to allow DNR officers onto his property on August 22, 1989, he...