Filed: Nov. 07, 2012
Latest Update: Mar. 26, 2017
Summary: Case: 12-12414 Date Filed: 11/07/2012 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-12414 Non-Argument Calendar _ D.C. Docket No. 1:11-cr-20660-WJZ-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus AQUCAVISE T. STANLEY, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (November 7, 2012) Before BARKETT, HULL and ANDERSON, Circuit Judges. PER CURIAM: After a jury trial, Defendant
Summary: Case: 12-12414 Date Filed: 11/07/2012 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-12414 Non-Argument Calendar _ D.C. Docket No. 1:11-cr-20660-WJZ-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus AQUCAVISE T. STANLEY, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (November 7, 2012) Before BARKETT, HULL and ANDERSON, Circuit Judges. PER CURIAM: After a jury trial, Defendant A..
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Case: 12-12414 Date Filed: 11/07/2012 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12414
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cr-20660-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AQUCAVISE T. STANLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 7, 2012)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
After a jury trial, Defendant Aqucavise Stanley appeals his conviction for
Case: 12-12414 Date Filed: 11/07/2012 Page: 2 of 9
possession of a firearm and ammunition by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e)(1). On appeal, Stanley raises one issue: whether
the prosecutor’s closing argument violated his rights under the Fifth Amendment.
After review, we conclude Stanley has shown no reversible error and affirm.
I. BACKGROUND
A. Stanley’s Arrest
On May 20, 2011, Officer George Eugene, a police officer with the
Miami-Dade Police Department, was on routine patrol in Miami, Florida, in his
marked police car. Officer Eugene observed Stanley holding the waistband of his
shorts with his right hand, as Stanley walked in a grassy area alongside the road.
As Officer Eugene’s police car approached, Stanley pulled a cell phone out of his
left pocket, put it toward his ear, and began talking. Stanley continued to hold
onto his waistband and, while driving by Stanley, Officer Eugene noticed a bulge
in Stanley’s pants.
In his police car, Officer Eugene pulled alongside Stanley and asked to
speak to him. Stanley immediately began running, continuing to hold his
waistband. Officer Eugene followed Stanley in his police car until Officer Eugene
was forced to leave the car and pursue Stanley on foot. Officer Eugene saw
Stanley run behind a house and jump over a chain-link fence into another
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backyard. Officer Eugene followed. Stanley then ran toward a wooden fence on
the far side of the backyard and stood on an air-conditioning unit in order to climb
the wooden fence.
As Stanley climbed down on the other side of the wooden fence, Officer
Eugene, who was now standing on the air conditioning unit, saw a gun and cell
phone fall from Stanley’s person. After Stanley fell to the ground on the other
side of the fence, Stanley continued running and tossed a gun magazine back
toward the fence. Stanley then jumped over another fence and was attacked by
two dogs. Officer Eugene helped Stanley back over that fence and arrested him.
A federal grand jury returned an indictment charging Stanley with
possession of a firearm and ammunition by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e)(1). He pleaded not guilty and proceeded to trial.
B. Stanley’s Trial
Stanley’s one issue on appeal involves whether the prosecutor’s closing
argument commented on Stanley’s failure to testify and shifted the burden of
proof. Therefore, we review in detail what happened at trial.
After the jury was sworn, the district court explained to the jurors that every
defendant is presumed to be innocent and that they could not draw an inference of
guilt from the fact that Stanley was indicted. The district court also instructed that
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the government always carries the burden of proving guilt beyond a reasonable
doubt, that a defendant may choose not to testify, and that the jurors were not
permitted to draw an inference of guilt from a defendant’s decision not to testify.
During opening statements, Stanley’s defense counsel stated that “[t]here is
nothing that links this gun to Mr. Stanley other than the fact that [Officer Eugene]
is going to say, ‘I saw it fall from [Stanley’s] waistband.’” Defense counsel then
stated: “I will tell you at the end of the case as to why that didn’t take place.”
As its main witness, the government called Officer Eugene, who testified as
to his pursuit of Stanley. On cross-examination, defense counsel questioned
whether Officer Eugene was able actually to see the gun fall from Stanley’s
waistband, since (1) Stanley had a head start on Officer Eugene, (2) Stanley
jumped over the fence before Officer Eugene did, and (3) Officer Eugene was
unable to see the other side of the fence. Officer Eugene maintained that he
personally saw the gun and cell phone fall from Stanley’s person.
Stanley’s defense case consisted solely of the testimony of a case agent with
the Bureau of Alcohol, Tobacco, Firearms and Explosives, who testified that upon
Stanley’s arrest, the agent took a DNA swab from Stanley’s cheek. The agent
further testified that no analysis on the swab was ever performed.
Before the government and the defense presented their closing arguments,
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the district court instructed the jurors that they were not to consider arguments
made by counsel as evidence and that they were required to render a verdict based
only on the evidence that was in the record. During closing arguments, the
prosecutor told the jury, “[n]ow, [defense counsel] also made a promise to you in
opening statement. . . . He promised to you that he would show you why—he
would tell you why what Officer Eugene saw was a lie.” Defense counsel
objected, stating that he did not “believe [he] ever said that Officer Eugene was
lying” and that he did not “believe it is fair comment or appropriate comment by
the prosecutor to make these comments at this time.” The district court overruled
the objection, stating that it thought that the prosecutor’s statement was a “fair
comment on the testimony and evidence that was presented.”
The prosecutor then argued to the jurors:
Now, the judge just instructed you, and will instruct you again,
that what we say is not evidence. It is not evidence in this case. What
[defense counsel] says is not evidence. What he is about to come up
here and tell you will not be evidence, and he did not—you know, he
did not show you one piece of evidence as to why Officer Eugene was
lying.
Now, make no mistake. The burden in this case is squarely on
the United States government. We have the burden of proof. But
when [defense counsel] makes a promise to you in opening statement
you should make him live up to that promise and he did not.
....
[T]he judge is going to instruct you again on proof beyond a
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reasonable doubt, and that’s our burden. We have to prove this case
beyond a reasonable doubt, and we embrace that burden and I’m
going to tell you why. Because it is a reasonable doubt. It is not any
doubt, it is not a possible doubt, it is not a forced doubt, or a
speculative doubt. It is a reasonable doubt. And there has been no
reasonable doubt given to you in this case. None.
Defense counsel raised no objections during or after this part of the prosecutor’s
closing argument.
Following the closing arguments, the district court again instructed the
jurors to make their decision based on only the testimony and other evidence
presented during the trial, and that the government had the burden of proving
Stanley guilty beyond a reasonable doubt.
The jury found Stanley guilty of one count of possession of a firearm and
ammunition by a convicted felon. Stanley then filed this appeal.
III. DISCUSSION
On appeal, Stanley argues that the prosecutor’s closing argument violated
his rights under the Fifth Amendment because his statements were intended to be a
comment on Stanley’s failure to testify and improperly shifted the burden of proof
to the defense.1
1
We ordinarily review allegations of prosecutorial misconduct during closing argument de
novo. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). Because Stanley did not
raise specific objections at trial related to impermissible burden-shifting or commenting on a
defendant’s right not to testify, we would normally review only for plain error “that is so obvious
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A prosecutor impermissibly comments on a defendant’s right to remain
silent where: “(1) the statement was manifestly intended to be a comment on the
defendant’s failure to testify; or (2) the statement ‘was of such a character that a
jury would naturally and necessarily take it to be a comment on the failure of the
accused to testify.’ ” United States v. Knowles, 66 F.3d 1146, 1162-63 (11th Cir.
1995) (citation omitted). A comment on the failure of defense counsel, as opposed
to the defendant, to counter or explain evidence does not violate the defendant’s
Fifth Amendment privilege against self-incrimination. United States v.
Hernandez,
145 F.3d 1433, 1439 (11th Cir. 1998). A prosecutor, as an advocate,
is entitled to make a fair response to the arguments of defense counsel. United
States v. Sarmiento,
744 F.2d 755, 765 (11th Cir. 1984).
For a prosecutor’s remarks to constitute prosecutorial misconduct, they must
(1) be improper and (2) prejudicially affect the defendant’s substantial rights.
United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). “A defendant’s
substantial rights are prejudicially affected when a reasonable probability arises
that, but for the remarks, the outcome of the trial would have been different.” Id.
(citation omitted).
that failure to correct it would jeopardize the fairness and integrity of the trial.” United States v.
Bailey,
123 F.3d 1381, 1400 (11th Cir. 1997). However, we need not determine whether our
review is de novo or plain error because Stanley has not shown reversible error in any event.
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In recognizing the government’s burden of proving guilt beyond a
reasonable doubt, we have recognized that a prosecutor’s comment may be so
prejudicial as to shift the burden of proof. United States v. Simon, 964 F.2d 1082,
1086 (11th Cir. 1992). However, the prejudice from a prosecutor’s comments that
may result in burden-shifting can be cured by a court’s instructions regarding the
burden of proof. Id. at 1087; see also Hernandez, 145 F.3d at 1439 (holding that
any potential prejudice regarding burden-shifting is diminished by the prosecutor’s
statement that the burden of proof is the government’s and the court’s explicit
instructions regarding the burden of proof in the jury charge).
Here, the prosecutor’s statements did not violate Stanley’s Fifth Amendment
rights. The statements were permissible argument as a response to defense
counsel’s opening statement that clearly placed Officer Eugene’s credibility at
issue. See Sarmiento, 744 F.2d at 765. Moreover, the prosecutor’s statements
were not manifestly intended to be a comment on Stanley’s failure to testify, nor
were the statements of such a character that the jurors would naturally and
necessarily take them to be a comment on Stanley’s failure to testify. See
Knowles, 66 F.3d at 1162-63. Rather, the statements, which named defense
counsel rather than Stanley personally, were directed at defense counsel’s failure
to identify any evidence that contradicted Officer Eugene’s testimony. See
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Hernandez, 145 F.3d at 1439.
Finally, because both the prosecutor and the district court cautioned the
jurors that (1) the statements of the lawyers were not evidence, (2) they were not to
consider the fact that Stanley failed to testify, (3) Stanley was presumed innocent,
and (4) the government bore the burden of proof, any potential prejudice or
burden-shifting caused by the statements was diminished or cured such that the
statements did not affect Stanley’s substantial rights. See Eckhardt, 466 F.3d at
947; Simon, 964 F.2d at 1087. Accordingly, we affirm Stanley’s conviction.
AFFIRMED.
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