CLELAND, District Judge.
Defendant-Appellant Oscar Wells was convicted of conspiracy to violate, and three counts of substantive violations of, the Hobbs Act, 18 U.S.C. § 1951. Wells was the "Water Pipe Repair Supervisor" at the Cleveland, Ohio, Water Department, whose duties included supervising the city's various repair and replacement contracts undertaken by private entities and individuals. Wells was convicted for his immersion in a scheme that noticeably improved his 2003 income by the solicitation and acceptance of about $40,000 in bribes paid by two contractors in return for channeling projects to them. Wells appeals, alleging prosecutorial misconduct and ineffective assistance of counsel. We
On October 24, 2007, Wells ("Defendant") was charged in a five-count indictment consisting of one count of conspiracy to commit bribery (count 1), in violation of the Hobbs Act; three counts of bribery (counts 2, 4, and 5), also in violation of the Hobbs Act; and one count of conspiracy to commit money laundering (count 3). Counts 1-3 involved activities with coconspirators and testifying witnesses, Jimmy Gates and Liberator Noce. Gates and Noce both cooperated with the Government, testified against Defendant, and received beneficial plea agreements from the Government. Counts 4-5 involved conduct with Larry Insana. Defendant's trial began on September 30, 2008, and on October 3, 2008, the jury returned a guilty
Defendant's activities as "Water Pipe Repair Supervisor" at the City of Cleveland Water Department ("the Water Department"), included supervising repair and replacement contracts such as those involving Noce and Insana. Defendant solicited, and Noce paid, bribes totaling around $40,000 during 2003. The thrust of the scheme was that Defendant would direct legitimate city work to Noce; Noce would improperly inflate the cost of the work and pass the excess charges on to Defendant as bribes. Defendant and Noce would meet weekly to discuss reconciling the Department's "job cards" with Noce's records and invoices. It was one of Defendant's job duties to ensure that the work performed by contractors matched what was charged by them. Gates was Defendant's supervisor. According to Gates, he eventually became suspicious of some of the line items being charged by Noce, and he confronted Defendant. Defendant suggested that Gates join the bribery scheme and that Defendant would split the bribes with Gates. Noce's testimony was to some extent inconsistent with Gates's explanation. Noce testified that the first time Defendant sought a bribe from him, Noce reported it to Gates, who did nothing. The three eventually met in person and outlined the details of the plan: Noce would inflate his charges, and pass the inflated amount on to Defendant, who would then split the money evenly with Gates. Initially, Noce would deliver the bribes in cash to Gates or Defendant. Gates testified that Noce said he did not want to pay income taxes on the inflated amounts and wanted to deduct the bribes as business expenses. Accordingly, he asked if he could pay the bribes in checks. Noce testified that his suggestion to pay by check was an attempt to discourage Defendant and Gates from continuing the bribery scheme. Defendant refused to accept checks, but Gates accepted four checks in 2003. On the days that Gates cashed the checks, Defendant's banking records showed cash deposits in amounts roughly equal to what would be expected to be his share of the bribes. Eventually, the parties to the bribery scheme became aware of a law enforcement investigation. Gates testified that, during initial interviews with the FBI, he lied and tried to coverup the scheme. Gates also actively attempted to stymie the investigation. He sent letters to Noce and Defendant stating that he wanted to "make sure they were all on the page" and expressing concern over the FBI investigation. Eventually, Gates decided to cooperate with the FBI and came clean. On the other hand, Noce, according to his testimony, cooperated with the FBI and told them "what [he] told the jury" at trial. Defendant argues that this testimony is inconsistent with what Noce originally told the FBI, and cites FBI reports which were not a part of the district court's record. The reports are the subject of Defendant's motion to supplement the record, and are relevant only to Defendant's argument that his counsel was constitutionally defective for failing to impeach Noce with the prior inconsistent statements made to the FBI.
The Government also showed that Defendant took bribes from Larry Insana, another contractor. Insana testified that, on two occasions, he bribed Defendant to receive work from the Department. Insana also testified that he had a prior business
Defendant argues that the prosecutor made improper statements or elicited improper testimony several times throughout the trial. He points to the following as instances of prosecutorial misconduct. In her closing argument, the prosecutor stated that the jury was "entitled to hear from all of the participants in this scheme." The prosecutor commented in her opening statement how Noce immediately cooperated with the investigation while Gates initially lied; she further commented that this is why she would recommend a lower sentence for Noce than for Gates. In her direct examination of Gates, the prosecutor elicited testimony concerning her recommended sentence. And she did the same during Noce's direct examination. In her closing argument, the prosecutor remarked upon the terms of Noce's and Gates's plea agreements. In her opening statement, direct examinations of Noce and Insana, and closing argument, the prosecutor also commented on the witnesses' prior consistent statements made to law enforcement. In her closing argument the prosecutor, referring to Insana, said, "He's just that kind of guy." Also in her closing, the prosecutor, in response to a hypothetical about a corrupt business man, said "I think he would" take a bribe. And, finally, the prosecutor elicited testimony that Defendant's wife, Sharon McLain, was in a position to destroy potentially incriminating job cards, and she elicited testimony that McLain had not been in the courtroom during the trial. Defendant did not object to any of these comments or testimony.
Because Defendant failed to present the prosecutorial misconduct issue below, we review for plain error only. See United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir.2008) (en banc); see also United States v. Bostic, 371 F.3d 865, 871 (6th Cir.2004). Plain error is "(1) error (2) that was obvious or clear, (3) that affected defendant's substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings." Vonner, 516 F.3d at 386 (citation and internal quotation marks omitted).
Reviewing allegations of prosecutorial misconduct is a two-step inquiry: determining whether the statements were improper; and, if so, determining whether they were flagrant
Defendant's first allegation of prosecutorial misconduct is that the prosecutor improperly commented on Defendant's decision not to testify. It is a familiar and well established rule of law that a prosecutor's direct reference to a defendant's decision not to testify at trial is a violation of that defendant's Fifth Amendment privilege against compelled self-incrimination. Griffin v. California, 380 U.S. 609, 610-15, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Lent v. Wells, 861 F.2d 972, 975 (6th Cir.1988).
Defendant argues that one comment in the prosecutor's closing argument, that the jury was "entitled to hear from all of the participants in this scheme," was a direct reference to Defendant's failure to testify. We reject this argument, even if we consider the comment out of context from the rest of the prosecutor's closing argument. The comment did not specifically state that Defendant did not testify or that he had not provided an alternative explanation. See, e.g., Griffin, 380 U.S. at 611, 85 S.Ct. 1229 ("These things [the defendant] has not seen fit to take the stand and deny or explain.... Essie Mae is dead, she can't tell you her side of the story. The defendant won't."). Suggesting that the jury was "entitled to hear from all of the participants" was not a direct reference to Defendant or his decision not to testify.
The prosecutor's argument, viewed in context, is not properly interpreted as even an indirect comment on Defendant's silence. In evaluating a claim of improper indirect comments on a defendant's silence, the court should consider:
Gonzalez, 512 F.3d at 292-93. Defendant's assertion that the prosecutor indirectly referred to his silence founders on the first prong. Reversal based on a prosecutor's improper indirect comment on a defendant's silence requires one of two
An examination of the prosecutor's comment in context of the trial and the rest of her closing argument is necessary to determine whether there is an explanation for it that is equally plausible with Defendant's assertion that it was a reference to his silence.
The testimony of Defendant's coconspirators was an important part of the case against Defendant. Here the government faced a problem that is as old as conspiracy prosecutions (if not older): its chief witnesses were admitted criminals, coconspirators who had bargained for favorable treatment. The question of the credibility of any such witnesses is a hardy perennial and an obvious target for a defendant. Here, the target was attacked almost immediately
The prosecutor's comment about the jury being "entitled to hear from all of the participants in this scheme" was simply not a comment on Defendant's silence. Rather, it was an explanation of why the prosecution depended on Gates, whose credibility was so vigorously challenged by defense counsel.
The quoted passage begins by explaining that, although the government does not enjoy dealing with witnesses such as Gates, they have no choice but to "go where the evidence leads" and that honest, law abiding citizens are unlikely to have information about a secretive criminal conspiracy. It is the coconspirators themselves who were "chosen" by Defendant, and who have the relevant information the jury should "hear." An argument that the cooperating witnesses were criminals, not choirboys, is familiar and ageless. The following comment about the jury being "entitled to hear from all of the participants" is nothing other than an explanation for calling a witness of vulnerable credibility. The three paragraphs that immediately follow the comment bolster this interpretation, because they directly address Gates's credibility. Accordingly, this is an "equally plausible" explanation for the prosecutor's comment—indeed, it seems to us the more probable by a wide margin. We cannot, in any event, find that a jury would "necessarily construe" the remark to be a comment on Defendant's silence.
But even if Defendant could make it past the first prong, the other prongs do not weigh in his favor. The remark is the only one that Defendant claims is a comment on his silence. The evidence against Defendant, consisting largely of testimony of coconspirators and bank records, was substantial. Finally, the remark was not so manifestly improper as to require a cautionary instruction sua sponte. Additionally, an interruption and a sua sponte cautionary instruction could have brought unwanted attention to Defendant's decision not to testify, needlessly doing more harm than good. See United States v. Robinson, 357 Fed.Appx. 677, 683 (6th Cir.2009).
Defendant also asserts that the prosecutor improperly vouched for the credibility of two witnesses, Noce and Insana. A prosecutor improperly vouches for a witness "by indicating a personal belief in the witness's credibility thereby placing the prestige of the office of the United States Attorney behind that witness." United States v. Francis, 170 F.3d 546, 550 (6th Cir.1999). Improper vouching may consist of "blunt comments" of the
Here, Defendant asserts that the prosecutor improperly vouched for Noce's credibility when she discussed Noce's and Gates's plea agreements. We have, on numerous occasions, held that a prosecutor's reference to the plea agreement of a testifying witness may be proper. Id. ("We have allowed a prosecutor to refer to the plea agreement of a testifying witness."). The prosecutor may "elicit testimony about [the plea agreement's] terms, attack the credibility of the witness because of it and even refer to the plea agreement of a government witness in an attempt to deflect defense counsel's use of the agreement to attack the witness's credibility." Id. In Francis, we reasoned that "[t]he potential for impropriety emerges... when a prosecutor explains that there is to be a recommendation to the witness's sentencing court whether the terms of the plea agreement have been adhered to." Id. We held that it was improper vouching when "[the prosecutor] asserted that `... if [the witness] testifies in this court truthfully, it's my intent to, as a government's representative, to recommend a 15 year sentence for him.'" Id. This statement, and others, "made it clear that [the prosecutor's] recommendation would depend on whether she personally believed [that the witnesses] told the truth." Id. at 551. The Francis court also stressed that there was testimony that the witness was only offered a plea bargain after the prosecutor believed that he was telling the truth, which "indicated a belief in the witness's credibility." Id.
Two recent, unpublished cases illustrate the operation of this rule. In United States v. Presley, we found that the prosecutor's comments on a witness's plea agreement were not improper. 349 Fed. Appx. 22, 27 (6th Cir.2009). In Presley, the prosecutor elicited testimony from two witnesses that their plea agreements required them to testify truthfully: "Q: And what is that agreement? A: To tell the truth." Id. at 25. The prosecutor also commented on the plea agreement in his closing argument: "as a result of his cooperation he was actually sentenced to fifty-four months"; and "[h]is arrangement was that he would not be prosecuted if he told the truth." Id. The panel found that the evidence was not improper because it simply established the existence of a plea agreement and its two principal terms: a lesser sentence in return for a promise to tell the truth. Id. at 26. Accordingly, the prosecutor never stated that he would be the one recommending whether the witnesses told the truth, so there was no implication that the prosecutor would be able to tell if the witnesses were lying. Id. In Presley, "unlike Francis, the prosecutor elicited testimony about the terms of [the witnesses'] plea agreements, but he never told the jury that he would make a recommendation as to whether they had adhered to those terms. There was also no indication that the plea agreements materialized only after the prosecutor believed [the witnesses]." Id. Accordingly, the comments were not improper.
We arrived at a different conclusion in United States v. Mongham, where we found that the prosecutor's redirect examination question "weren't you told specifically that if you failed to testify truthfully I'd prosecute you for perjury" was improper. 356 Fed.Appx. 831, 836 (6th Cir.2009). We so held because "by stating the question in the first person ... the prosecutor implied that he had independent knowledge
Defendant argues that the prosecutor improperly vouched for the truthfulness of Noce's testimony in her opening statement, during Gates's and Noce's direct examination, and in her closing argument. In her opening argument, the prosecutor highlighted that Gates and Noce "reacted differently" to the FBI's investigation:
The clear implication of this opening is that Noce told the truth from the beginning of the investigation, whereas Gates only later began telling the truth. Indeed, Noce's and Gates's testimony directly supports this basic story. It is not improper for a prosecutor, in an opening statement, to preview for the jury an expectation that the evidence will show that one witness initially lied and then told the truth, while another witness told the truth from the beginning. The only potential problem here is the prosecutor's statement that this is why she "will be recommending" a reduced sentence for Noce but not for Gates. While the prosecutor did not explicitly state that the recommendation was in consideration for telling the truth (rather, she couched it in terms of being in consideration for pleading guilty), one implication can be that the prosecutor will recommend personally a reduced sentence for Noce because she believes that he told the truth from the beginning, but she will not make such a recommendation for Gates because she does not believe that he told the truth in the beginning. As in Francis and Mongham, the prosecutor here appears to have implied, if not "made it clear," that her recommendation would depend on whether "she personally believed [the witnesses] told the truth." Francis, 170 F.3d at 551 (emphasis added). The comments in the opening statement using the first person verged upon improper vouching.
The prosecutor made similar comments during Gates's direct examination: "I have agreed to recommend what's called a departure in your sentence.... So your recommendation from me is not as good as it otherwise would have been; is that correct?" And in the direct examination of Noce: "And I agreed to recommend what's called a departure in your sentence because you've agreed to cooperate?" These questions came very close to implying that the prosecutor was making a personal evaluation of whether the witnesses testified truthfully.
Defendant also argues that the following comment from the prosecutor's closing argument was improper:
This remark and line of reasoning were not improper. The prosecutor stated only that the witnesses had an obligation to tell the truth and explained the results of their respective plea agreements. Because the statement is devoid of any indication that it was the prosecutor who personally decided what recommendation to make, there is no implication that she is personally vouching for the truthfulness of the testimony.
Defendant also argues that the prosecutor improperly vouched for Insana's character for truthfulness, by stating that "when the FBI knocked on his door he told them the truth. He's just that kind of guy." The Government responds that the prosecutor was merely arguing that the evidence showed that Insana was not the type of person who would lie to set someone up. The Government further asserts that this line of argument was in rebuttal to Defendant's theory that Insana and Noce lied about Defendant to protect each other. An examination of the context of
The remark was proper argument that the evidence suggests that Insana testified truthfully. It was not personal vouching.
Defendant is correct to analogize this case to Francis. In Francis, the prosecutor improperly remarked during the government's opening statement on the prosecutor's sentence recommendations for two witnesses, one of whom did not initially tell the truth. Francis, 170 F.3d at 550. And in the direct examination of one of the witnesses, the prosecutor elicited testimony about how the prosecutor "finally believed" the witness and offered a plea bargain. Id. at 551. Likewise, here, the prosecutor remarked during her opening statement on her sentence recommendations for two witnesses, one of whom did not initially tell the truth. And here, as in Francis, she elicited testimony concerning the recommendations during the direct examinations of witnesses. But the comparison with Francis does not end with the indicators of improper vouching: in Francis, reviewing "each comment or set of comments individually for potential flagrancy," Francis, 170 F.3d at 546, we held that the prosecutor's comments were not flagrant. The same is true here. Assuming that the comments in this case crossed the line of propriety, "the instances of impropriety ... were[,] for the most part, isolated from the other sets of remarks and not deliberate. Accordingly, they were not flagrant." Id. at 552. We also note the overall strength of the case against Defendant, which included bank records and testimony that Wells made four cash deposits on days that Gates cashed checks from Noce.
Defendant also argues that it was improper for the Government to mention, during its opening statement and on direct examination, Noce's and Insana's prior consistent statements to the FBI. He argues that prior consistent statements are allowed only "to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." See Fed.R.Evid. 801(d)(1)(B). Because Defendant had not yet challenged the testimony on cross when the prosecutor mentioned the statements in her opening statement and when evidence of the statements was introduced on direct examination, Defendant argues that it was improper to mention them. This proposition is well supported. See, e.g., United States v. Bolick, 917 F.2d 135, 140 (4th Cir.1990); United States v. Hernandez, 779 F.2d 456, 459 (8th Cir.1985); United States v. Smith, 746 F.2d 1183, 1185 (6th Cir.1984); United States v. Simmons, 567 F.2d 314, 321 (7th Cir.1977); United States v. Stone, 472 F.2d 909, 914 (5th Cir.1973). The plain meaning of Rule 801(d)(1)(B) also supports Defendant's argument, as it allows prior consistent statements only to "rebut" a charge of improper motive and influence, and recent fabrication.
It was not, however, improper for the prosecutor to call attention to the pretrial statements during the direct examination of Noce and Insana. By this point in trial, Defendant had already charged the witnesses with an improper motive at least three times: (1) "Both [Noce and Gates] agree[d] to testify against Mr. Wells. And neither one of them—they've also agreed, the government, that certain other charges that could potentially be brought against them for their conduct, their illegal conduct, in the Water Department will not be brought against them. And that is their motivation."; (2) "Mr. Insana is a former, and to a certain extent, current business partner of Mr. Noce. They had a company together doing this type of work. And this allegation against Mr. Wells helps Mr. Noce. Other witnesses will be individuals who are trying to help Mr. Noce in his efforts to lessen his consequence in this case."; (3) "There will be no unbiased witness coming into this courtroom saying that Mr. Wells—they know that Mr. Wells received a bribe." Because the testimony elicited during direct examination of Noce and Insana came after Defendant charged them with an improper motive in his opening statement, the line of questioning was fairly responsive and not improper. See United States v. Boyland, No. 91-6069, 1992 WL 332002, at *3 (6th Cir. Nov. 12, 1992).
So, even though the prosecutor's remarks about prior consistent statements during her opening statement were arguably improper, there can be no reversible error because the remarks did not prejudice Defendant. Two cited cases in which courts have found that prematurely mentioning prior consistent statements supported remanding for a new trial are distinguishable from this case. In Smith, this circuit found that introducing a tape recording of a witness before the witness took the stand prejudiced the defendant, even though the witness later testified that "he agreed to plead guilty and testify ... because the plea bargain the government offered was just too good to turn down." Smith, 746 F.2d at 1185. The recording of the witness in Smith was made without his knowledge, before he realized he was being investigated. Accordingly, the recording was acutely corroborative of his testimony. In Bolick, the Fourth Circuit found prejudice and reversible error when an officer testified about prior consistent statements made by cooperating witnesses before the witnesses took the stand. Bolick, 917 F.2d at 140. The Fourth Circuit found prejudice, in part, because the declarations came from a law enforcement officer lending the "appearance of credibility" to the declarations. Furthermore, the defendant in Bolick objected to the officer's testimony, so the standard of review in Bolick was less deferential than it is here. None of the considerations in Smith and
Any potential prejudice that might otherwise have been inflicted upon Defendant by the remarks about prior consistent statements vanished during Defendant's opening statement. Defendant offers no suggestion that he would have refrained from charging the witnesses with improper motive to avoid the introduction of the prior consistent statements. Any such suggestion, if made, would be implausible since a major part of Defendant's defense was an attack on the credibility of the government witnesses. The prosecutor's remarks did nothing more than predict what would soon come out properly in the course of witness examination. Furthermore, there was considerable evidence of Defendants guilt, viz. the bank records and testimony that Defendant made four cash deposits on days that Gates cashed checks from Noce. Under these circumstances, we do not view the prosecutor's remarks concerning the prior consistent statements as flagrant.
Defendant also asserts that the prosecutor made an improper comment when she, in response to her own rhetorical question whether a corrupt businessman would take a bribe, said that "I think he would." Defendant argues that this was an accusation that Defendant would be willing to take a bribe. The context of the prosecutor's comment, however, supports the Government's position that the prosecutor was referring to a hypothetical corrupt business person. Just prior to making the statement the prosecutor asked: "[W]ould you ... if you were a corrupt business person, say, I'm in, this is going to work, he'll do it, he'll take a bribe? I think he would." Even though the prosecutor was not referring to the Defendant, she should still have avoided injecting what appears to be personal views or opinion. The prosecutor, perhaps realizing this, immediately amended the thought by adding, "[b]ut what I think doesn't matter. The question is your assessment of the evidence...." Moreover, the court immediately issued a curative instruction: "[The prosecutor] is correct.... It's not what you think, but—I mean it's not what she thinks ... but what the evidence shows...." There was therefore little chance that the statement would mislead the jury or prejudice Defendant. And the prosecutor's immediate correction demonstrates that it was almost certainly inadvertent rather than deliberate. Defendant points to no other incidents where the prosecutor made similar statements expressing personal opinions on what the evidence meant. It was isolated. And again, the strength of the other evidence against Defendant indicates that the comment was not flagrant.
Defendant argues, quite briefly, that it was improper for the prosecutor to present testimony that Defendant's wife
Defendant argues also that a comment about his wife's absence from the courtroom was an attempt to improperly shift the burden to him by pointing out that she did not testify. The questioning came in the following context:
(Emphasis added.)
These questions, the point of which is not entirely clear, came in the middle of a series of questions to Special Agent Massie about Exhibits 12 and 10, summaries of subpoenaed records of Defendant's banking activity and the operation of a sports gambling pool. Significantly, it came before Defendant had the opportunity to present any evidence, so it is highly improbable that the jury would consider it a comment about a "failure to produce" anyone as a witness. We note also that one or more documents earlier admitted in the case bore a reference to Defendant's wife: a previous witness, for example, had recognized McLain's initials—notably accompanied by a "smiley face"—on a document faxed from the Water Department concerning a job order. We are tempted to think that there may have been some reference to McClain in the documents being displayed to the witness that prompted questions about her that appear to have come in from left field. Considering the record as presented, we do not know, and will not further speculate. But even if we considered the question improper, the uncertainty of its import, its momentariness, and its utter isolation suggest that it did not mislead the jury or cause identifiable prejudice. In any case, the comment was not flagrant.
Finally, Defendant argues that we should review his ineffective assistance of counsel claims on this direct appeal. He asserts that trial counsel was ineffective for failing to object to alleged instances of prosecutorial misconduct and failing to prepare for and to impeach Noce's testimony. Ineffective assistance of counsel claims alleging that trial counsel's performance
All Defendant's claims implicate matters of trial preparation and strategy—preparation for and impeachment of witnesses, and whether objections should be raised. The record does not reveal why defense counsel decided not to raise particular objections or employ particular impeachment techniques.
For the foregoing reasons, we
