United States v. Billman ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0851n.06
Filed: December 14, 2007
06-3731
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
v. ) DISTRICT OF OHIO
)
ARTHUR LEE BILLMAN, JR., ) OPINION
)
Defendant-Appellant. )
BEFORE: BATCHELDER, COLE and GRIFFIN, Circuit Judges.
R. GUY COLE, JR., Circuit Judge. Defendant-Appellant Arthur Lee Billman, Jr.
(“Billman”) appeals his jury conviction for being a felon in possession of a firearm in or affecting
interstate commerce on or about September 24, 2003, in violation of Title 18, Section 922(g)(1) of
the United States Code. Billman presents the following issues on appeal: 1) a challenge to the
district court’s denial of his pretrial motion to suppress evidence obtained during two searches of
Billman’s house; 2) a claim that the evidence presented was insufficient for conviction; 3) a claim
of prosecutorial misconduct; and 4) a claim that cumulative errors resulted in the denial of a fair trial.
For the reasons set forth below, we AFFIRM.
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I. BACKGROUND
A. Facts
1. September 16 Search
On September 16, 2003, Billman’s son Jon called 911 to report an armed robbery at
Billman’s home. Billman and his live-in girlfriend, Eugenia Berring, resided at 2192 Brownlee
Avenue in Canton, Ohio. Based on the description provided by Jon, the police detained Robbie
Umbles as he was walking in a nearby neighborhood. Police escorted Billman to the site where
Umbles was being detained, and based on a positive identification by Billman, took Umbles to the
police station. Billman accompanied the officers to the station, where he and Umbles both entered
statements regarding the incident. Umbles claimed that he was purchasing marijuana from Billman
when he instead stole the drugs at gunpoint; Umbles also informed police that Billman’s basement
housed an operation to grow marijuana. Billman claimed that he was purchasing marijuana from
Umbles when Umbles robbed Billman at gunpoint. No charges were filed against Billman and
following the entry of the voluntary statement, officers offered to drive him home. Billman accepted
the ride, but requested to be dropped off at an auto repair store instead of home.
During the time that the officers were interviewing Billman, Canton Police Department
Detective Joseph Mongold inquired at the Canton Prosecutor’s Office as to whether the information
provided by Umbles combined with historical complaints about a marijuana operation at the
Brownlee residence were sufficient to allow the officers to obtain a search warrant for the home.
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The prosecutor answered in the negative and suggested that the detectives try to obtain more
information before filing for a warrant.
Mongold and Officer John Clark proceeded to the Brownlee home to conduct a visual
inspection of the premises and to determine if a K-9 drug-detection dog would alert to the presence
of drugs. When they arrived, the officers found that Berring was at home. Berring granted the
officers permission to enter the yard and search the exterior of the home. This search turned up no
information that would support a search warrant for the premises.
Mongold also requested Berring’s permission to search the inside of the home. Berring
stated that the officers could search the residence only if they had a search warrant. Sergeant Victor
George, an officer whom Berring knew and trusted, was called on a cellular phone by Mongold and
spoke with both Mongold and Berring. At this point, the testimony of Mongold and Berring
diverges. Mongold states that following the conversation with George, Berring assented to the
search. Berring states that while she did sign a consent-to-search form following the arrival of
George, she did so based on the understanding that officers were in the process of obtaining a search
warrant.
During the search of the home, the drug-detection dog alerted to the presence of drug residue
on a grow light in the basement and a locked safe in the garage. The officers requested that Berring
open the safe, which she eventually did in the presence of George. Berring states that she only
opened the safe because Mongold threatened to obtain a search warrant, take the safe downtown, and
have it cut open. Berring then stated that the items in the safe belonged to her and Billman’s father,
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Arthur Billman Sr., who lived across the street. George did not seize any of the property in the safe,
but he observed multiple firearms and other items.
2. September 24 Search
At some point on September 24, George was directed by the Canton Police Chief to proceed
to the City Prosecutor’s Office with Sergeant John Dittmore to obtain a search warrant. Instead,
George proceeded to the office with Detective Daniel Heaton. At or around this time, Patrolman
Bruce Lawver, who was providing surveillance on the Brownlee Avenue home, contacted Dittmore
to inform him that a truck was leaving the home. Dittmore then asked Clark to effectuate a traffic
stop so that the officers could continue the investigation.
Clark directed Berring, the driver of the truck, to stop and approached her vehicle, informing
her that Dittmore wanted to speak with her. Berring claims that Clark told her she could not leave,
and that she then waited ten minutes for Dittmore to arrive. Dittmore and Lieutenant Ronald Shank
arrived in an unmarked car, accompanied by two marked cars, at which time Clark moved his cruiser
in front of and facing Berring’s truck, but not blocking it in. Dittmore informed Berring that the
officers were doing a follow-up investigation regarding the weapons in the safe and that the police
wanted access to the weapons, but that they did not have a warrant.
Berring contends that she refused consent absent a warrant, and that at some point Dittmore
angrily waived a piece of paper and stated “here is your warrant. Now let’s go back to the house.”
(Joint Appendix (“JA”) 488.) Berring claims that she believed the paper to be a warrant. Dittmore
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and the other officers present deny that Dittmore made any statements of this sort. Shank and
Officer Ronald Broadwater then spoke with Berring while Dittmore took a phone call. During this
conversation, the officers state that Berring gave consent to a search of the safe. Berring then drove
back to her home and the officers followed behind.
Upon arriving at her home, Berring opened the garage door from the outside and entered the
garage, and then opened the safe. The officers asked Berring to step away from the safe, which
contained visible firearms, until Agent Charles Turner arrived with a consent-to-search form.
Officers state that during the time they waited, Berring was calm and chatted about hunting,
volunteering to show the officers her trophy room and stuffed animals.
Turner claimed that Berring seemed calm when he arrived at the house. Turner, Broadwater,
and Berring sat at a dining table while Turner explained the consent form. Turner asked if Berring
was literate, to which she answered in the affirmative. Turner read the form out loud and asked
Berring if she understood it. Berring stated that she understood the form, and limited the scope of
her consent to the safe in the garage, asking Turner to change the writing on the form to reflect the
limitation. Turner indicated the limitation on the form and Berring signed it, at which point officers
proceeded to collect the evidence from the safe.
The officers seized 26 guns, Billman’s expired driver’s license, an invoice dated after
Billman’s felony conviction and made out to Billman for a gun part, as well as other items. During
this time, Berring allegedly described to the officers which guns were hers and which were
Billman’s.
3. September 25 Search Warrant and Search
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Officers obtained a search warrant on September 25 and executed the search on the same day.
Billman objected to the validity of the warrant based on the supporting affidavit. The Government
did not concede that the warrant was invalid, but stipulated that it would not introduce any evidence
obtained from this search during the trial.
B. Procedural History
Billman was indicted on November 16, 2004. On February 2, 2005, a superseding indictment
was filed, accusing Billman of unlawful possession of 25 firearms on or about September 24, 2003.
Prior to trial, Billman filed a motion to suppress the evidence obtained during the September 16, 24,
and 25 searches. The district court conducted a hearing on these motions and denied the motions
with respect to the September 16 and 24 searches. Billman proceeded to trial pro se with the
assistance of two standby counsel from the Federal Public Defender’s Office.
Over the course of the trial, the Government presented evidence that each of the guns had
been manufactured in another state. During the direct examination of the Government’s expert, the
prosecution specifically asked the expert about the gun which the jury ultimately found that Billman
unlawfully possessed, referring to it both as Exhibit 12 and as a Revelation 410 shotgun. The expert
testified that the gun was manufactured in Connecticut.
Billman presented evidence that the gun was housed in a safe to which he did not have
access, that the safe and guns inside it belonged to Berring and Billman’s father, and that the couple
had signed an agreement prior to the search demonstrating the items in the safe belonged to Berring
and not Billman. The Government presented evidence that a receipt for a gun part made out to
Billman was in the safe and that a gun that Billman had possessed at one time was in the safe as well.
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One of the Government’s agents testified that Berring had informed him that Billman had a key to
the safe as well.
Billman and the Government stipulated that Exhibit 12, the 410-gauge shotgun, belonged to
Nicholas Berring, Billman’s 10-year-old son.1 Both sides presented evidence that Billman
accompanied members of his family on hunts and that Ohio law required adult supervision while
minors were hunting. The Government produced a May 2004 photograph of Billman and three of
his children in hunting gear, including Nicholas, who was holding a shotgun.
On January 24, 2006, the jury found Billman guilty of possessing Exhibit 12, the Revelation
410-gauge shotgun, model 330A, in violation of 18 U.S.C. § 922(g)(1). On January 31, 2006,
Billman filed a motion for judgment of acquittal, pursuant to Fed. R. Crim. P. 29, and a motion for
a new trial, pursuant to Fed. R. Crim. P. 33. In addressing Billman’s sufficiency-of-the-evidence
claim, the district court ruled that the jury’s verdict was based on sufficient evidence and was thus
not unreasonable.
II. Motion to Suppress
Billman argues that the district court erred in finding that Berring’s consent to search was
voluntary on both September 16 and 24. When reviewing a district court’s ruling on a motion to
suppress, this Court reviews the district court’s factual findings for clear error and the conclusions
1
The superseding indictment and the district judge at one point referred to the gun as a
Remington 410 gauge shotgun, while the verdict form and all other trial references are to a
Revelation 410 gauge shotgun. The at-trial identification by Billman and the Government’s witness
is sufficient to show that the court was at all times referencing Exhibit 12.
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of law de novo. United States v. Richardson, 385 F.3d 625, 629 (6th Cir. 2004) (citations omitted).
A warrantless entry and search of a home is valid under the Fourth Amendment “when police
obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority
over the area in common with a co-occupant who later objects to the use of evidence so obtained.”
Georgia v. Randolph, 547 U.S. 103, 106 (2006) (citations omitted). Consent “that is the product of
official intimidation or harassment is not consent at all.” Florida v. Bostick, 501 U.S. 429, 438
(1991). Further, “credibility is a key issue” in consent cases and this court “accord[s] considerable
deference to the credibility findings of the trial court.” United States v. Cooke, 915 F.2d 250, 252
(6th Cir. 1990).
The Government bears the burden of demonstrating “that the consent was in fact voluntarily
given, and not the result of duress or coercion, express or implied.” Schneckloth v. Bustamonte, 412
U.S. 218, 248 (1973). The Schneckloth Court continued, stating: “Voluntariness is a question of fact
to be determined from all the circumstances.” Id. at 248-49. The “‘district court’s findings with
regard to voluntariness [of consent to search] will not be reversed unless clearly erroneous.’” United
States v. Salvo, 133 F.3d 943 (6th Cir. 1998) (quoting United States v. Taylor, 956 F.2d 572, 777
(6th Cir. 1992) (alteration in original).
In determining that the September 16 consent was voluntary, the district court summarized
the evidence before it and detailed the reasons that the consent was valid:
Miss Berring’s consent was voluntary and freely given. I point out that this is
consistent with her testimony under oath at the Grand Jury, and while she testified
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differently in this courtroom, her testimony in this courtroom was simply not
credible.
First, Sergeant George, who obviously was friendly with Miss Berring, and who was
there at the time and was the one who obtained the consent, testified that she did
voluntarily and freely consent.
Second, as I said, she had previously testified under oath that she did consent.
Third, I watched her demeanor on the stand and did not find her to be credible.
She cried on cue, she changed the nature of her testimony more than once. It was not
internally consistent. And the Court finds that her ability, her effort to retract from
her prior sworn testimony under oath before the Grand Jury was unavailing and
unconvincing.
(JA 509-512.) The district court’s credibility determination is given deference by this Court, and in
any event is supported by the evidence. The district court’s determination that the consent was
knowing and voluntary is a factual determination that is not clearly erroneous and is supported by
the evidence.
For the September 24 search, the district court once again summarized the evidence, made
a reasoned decision based on the evidence, and accounted for all of defendant’s arguments against
finding consent:
The other officers have testified that there were no raised voices, there was nothing
untoward, that no one ever placed a hand on Miss Berring, and that she was not
intimidated. The other officers say that she was asked to go back to the home and
that she did do so.
....
Once the [consent to search] form did arrive, the Court finds that Miss Berring did
execute it. Again, she testified under oath that she did not execute it. She testified
to that effect here in the suppression hearing. But that testimony is inconsistent with
her sworn testimony before the Grand Jury.
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In addition the Court afforded the defendant the opportunity to hire a handwriting
specialist. The Court paid for the services of a handwriting specialist and no
testimony was presented . . .
So the Court finds that ultimately, Miss Berring’s decision to return home, to open
the safe, and to allow a subsequent search of the safe, was also a voluntary decision
to consent to that search.
(JA 514-17.) Once again, the district court’s factual findings are not clearly erroneous and are
supported by the evidence.
III. Sufficiency of the Evidence
A motion for judgment of acquittal pursuant to Rule 29 due to insufficient evidence is
reviewed under the same standard as an insufficient evidence claim. United States v. Bowker, 372
F.3d 365, 387-88 (6th Cir. 2004). Following a conviction, a defendant “bears a very heavy burden
in his sufficiency of the evidence challenge to his conviction.” United States v. Davis, 397 F.3d 340,
344 (6th Cir. 2005) (quotation omitted). For this Court,
In reviewing a district court’s denial of a motion for judgment of acquittal on a claim
of insufficient evidence, “the relevant question is whether after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.”
United States v. Lloyd, 10 F.3d 1197, 1210 (6th Cir. 1993) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)).
The parties stipulated that Nicholas owned the 410-gauge shotgun, and there was no evidence
that Billman had actual possession of it. Thus, it must be that the jury found Billman was in
constructive possession of the gun.
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In United States v. Grubbs, No. 04-5403, 2007 U.S. App. LEXIS 24252, (6th Cir. 2007), this
Court summarized the circuit’s constructive possession law:
“Constructive possession exists when a person does not have possession but instead
knowingly has the power and the intention at a given time to exercise dominion and
control over an object, either directly or through others.” [United States v. Craven,
478 F.2d 1329, 1333 (6th Cir. 1973).] In contrast to a situation where the defendant
has physical contact with a firearm . . . constructive possession may be proven if the
defendant merely had “dominion over the premises where the firearm is located.”
United States v. Gardner, 488 F.3d 700, 713 (6th Cir. 2007) (internal quotations and
citations omitted).
However, it is without question that “‘[p]resence alone’ near a gun . . . does not
‘show the requisite knowledge, power, or intention to exercise control over’ the gun
to prove constructive possession.” United States v. Arnold, 486 F.3d 177, 183 (6th
Cir. 2007) (quoting United States v. Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976)).
“[O]ther incriminating evidence, coupled with presence” is needed to “tip the scale
in favor of sufficiency.” Id.
Id. at *11-12.
In this case, the evidence supporting constructive possession includes the undisputed
evidence that Billman’s son owned the 410-gauge shotgun, the gun was stored in a safe in Billman’s
garage, and that Billman was at times in close proximity to his ten-year-old son holding a shotgun.
Given the testimony that adults must supervise minors when hunting, Billman’s testimony that he
accompanied his children during hunts, and the agent’s testimony that Berring stated Billman had
possession of a key to the safe, the district court’s finding that there was sufficient evidence of
constructive possession was not clearly erroneous. The jury’s verdict was also supported by the
evidence.
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IV. Prosecutorial Misconduct
Billman complains that the prosecutor’s conduct at trial resulted in reversible error. While
the prosecutor made some improper statements during the trial, the statements do not warrant a new
trial when reviewed either individually or as a whole.
The question of whether a prosecutor’s conduct amounts to prosecutorial misconduct, and
whether it rendered the trial fundamentally unfair, are mixed questions of law and fact that are
reviewed de novo. See United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999). When there is
no objection at trial, the alleged improper conduct is reviewed for plain error. United States v.
Carroll, 26 F.3d 1380, 1383 (6th Cir. 1994). Alleged conduct that is subject to an objection at trial
is reviewed de novo. United States v. Owens, 426 F.3d 800, 806 (6th Cir. 2005). In conducting our
review, we employ a two-step analysis, determining first whether the prosecutor’s conduct was
improper and second whether it was flagrant. United States v. Tarwater, 308 F.3d 494, 511 (6th Cir.
2002). “Improper remarks that are flagrant amount to per se reversible error; improper errors that
are not flagrant may amount to reversible error in certain circumstances.” United States v. Hargrove,
416 F.3d 486, 493 (6th Cir. 2005). In determining whether a statement was flagrant, the Court
considers:
(1) whether the remarks tended to mislead the jury or to prejudice the accused,
[including whether the trial judge gave an appropriate cautionary instruction to the
jury]; (2) whether they were isolated or extensive, (3) whether they were deliberately
or accidentally placed before the jury; and (4) the strength of the evidence against the
accused.
United States v. Abboud, 438 F.3d 554, 585 (6th Cir. 2006) (alteration in original) (citations
omitted). If the statement was improper but not flagrant, reversal is only appropriate when “(1) proof
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of defendant’s guilt is not overwhelming, and (2) defense counsel objected, and (3) the trial court
failed to cure the error with an admonishment to the jury.” Carroll, 26 F.3d at 1385-86 (citing United
States v. Bess, 593, F.2d 749, 757 (6th Cir. 1979) (emphasis in original).
A. The Instances Complained of are Improper.
Billman complains of three instances of misconduct. First, the prosecutor offered Exhibit
67 into evidence, despite its reference to Billman’s participation in a drug-treatment program, a
subject which the district court previously determined could not be referenced at trial. Second, the
prosecutor’s questioning of Billman’s parole officer elicited testimony about Billman’s parole
violations, a subject that the district court had also determined was inadmissible. Third, the
prosecutor’s closing arguments falsely asserted that Exhibit 50 was a picture of a “crime as it
occurred,” where Exhibit 50 was the photograph of Billman standing near his son Nicholas, in
hunting gear, while Nicholas held a shotgun. Although the prosecutor’s conduct in the
aforementioned instances was improper, it was not flagrant and does not require a new trial.
B. The Misconduct was Not Flagrant.
1. Exhibit 67.
During its cross-examination of Billman, the Government produced a parole condition form
signed by Billman. Billman was unable to make out the signature on the screen and requested that
the Government enlarge the image, which the Government then did. The form contained a reference
to psychological treatment and drug testing. Billman requested to approach the bench and the
following side bar occurred on the record:
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MR. BILLMAN: You have banned Mr. Corts [the prosecutor] not to
bring up drugs and counseling, and he brought it up. They all just
looked at it.
MR. CORTS: That’s the - -
MR BILLMAN: Right there it is. Drug counseling, and you just did
it.
MR. CORTS: That’s over here.
....
MR. CORTS: The only reason I would be using these two things is
he signed, and then when he was released, that has that condition in
there that he can never own or purchase a weapon. I’ll put those up
there.
MR. BILLMAN: They already seen that now.
MR. CORTS: They didn’t see it.
MR. BILLMAN: I seen it.
THE COURT: Well - -
MS. CRAMER: They only saw the enlarged part.
...
THE COURT: [A]t this point I am getting so nervous about the fact
that you have gone so far down this road that I already know I have
to give the jury a limiting instruction, and if we go any farther down
that road, I’m going to have to tell them to disregard it all.
So if you want to say, just so there’s no debate and confusion,
“When you were on parole, you understood that you couldn’t own or
possess a weapon, right?” If you want to ask him that question, you
can, but don’t use this document.
(JA 645-49.)
Thus, it appears that the improper portion of Exhibit 67 was shown to the jury by accident.
In addition, the district court noted that the jury was unlikely to have seen the reference to drug
counseling because it was in small type, the prosecutor focused the screen on Billman’s signature
quickly, and no reference was made to the such treatment during the examination. After Billman
objected to the use of the document, the district court instructed the Government to avoid using the
document and it was not presented before the jury again. Although no curative instruction was given
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to the jury, the display was brief and the focus was on a different portion of the document. Thus, the
conduct was not flagrant and does not render the trial fundamentally unfair.
2. Parole Officer Slater’s Testimony.
After obtaining initial background information from Officer David Slater about his duties,
the prosecution proceeded to pursue questioning regarding Billman’s period of parole:
Q. Can you tell us about any incidents at that time?
A. The time that I’m referring to is when he was returned to
prison as a violator.
Q. And what was that for?
A. There were numerous violations.
MR. BILLMAN: Object.
THE COURT: Sustained. The jury will disregard that
comment. The [G]overnment was instructed that that was
inappropriate evidence.
(JA 545.) Slater then testified that there had been an incident with a handgun that was found in
Billman’s bedroom. The prosecutor continued:
Q. And do you know if it was loaded or not?
A. Yes, it was. Eight in the clip and one in the chamber.
MR. BILLMAN: Objection.
THE COURT: Sustained. Approach.
(At side bar on the record.)
THE COURT: I don’t know if you are trying to invite a
mistrial, but you are getting pretty close. You are certainly getting my
anger. I told you not to do this. I told you you could establish the
continued ownership. There’s no reason to even address the question
of whether it was loaded, and I told you to stay away from violations.
MS. CRAMER: I was shocked that he answered violations.
THE COURT: Did you talk to him about the limitations.
MS. CRAMER: Yes, Judge, at least three times. At least
three times, Your Honor.
THE COURT: Why did you ask him if it was loaded? Of what
relevance is that other than to try to prejudice the jury?
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(JA 546.)
This does not rise to the level of flagrant misconduct. While the district court expressed its
strong disapproval to the Government, the district court also issued a curative instruction to the jury,
instructing them to disregard the questions because they were improper. This misconduct, followed
by a curative statement, is not flagrant and does not warrant a new trial. See United States v. Sales,
No. 05-2522, 2007 U.S. App. LEXIS 21869, * 19-20 (6th Cir. 2007) (finding that the prosecutor’s
statement regarding defendant’s prior felonies, while improper, were not flagrant when followed by
a curative instruction).
3. Prosecutor’s Closing Argument.
During the Government’s closing argument, the prosecutor made comments that resulted in
the issuing of a curative statement by the district court. The Government displayed Exhibit 50, the
photograph of Billman and his children, and stated: “The significance of this picture is, with it, you
are getting to see the crime.” Later, the Government’s counsel stated: “So what you are looking at
in this photo is the defendant in possession of firearms. . . . The person in control is the person who
has always been in control, the defendant, Arthur Lee Billman, Jr.” (JA 659.) Billman objected and
the district court stated:
Ladies and gentlemen, the [G]overnment just misspoke, seriously
misspoke. Ms. Cramer represented that the photograph showed the
crime occurring in this case.
There’s no evidence at all that this photograph was taken on
September 23, 2004 [sic]. There’s no indication that it was even
close to that date. We have no idea when that photograph was taken
. . . . [T]he statement that this shows a crime occurring is an incorrect
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statement, and even Ms. Cramer admitted at side bar that that’s not
what she meant to say.
So its important that you understand that this is not evidence of any
crime that’s at issue here.
(JA 660.)
During the Government’s rebuttal during closing argument, Billman once again objected to
the Government’s argument:
(MR. CORTS:) But, you know, a lot of times in these drug cases, we
encounter - -
MR. THOMPSON: Objection
THE COURT: Sustained. Now you are going off into other
circumstances. You need to wrap it up, Mr. Corts. This is supposed
to be a brief rebuttal.
MR. CORTS: In some cases people who are committing
crimes hide the fruits of those in lots of different places.
MR. THOMPSON: Objection.
THE COURT: Sustained. Mr. Courts, I sustained the
objection to that before. Do not speculate about what happened in
other circumstances, and ladies and gentlemen, you must ignore all
such argument.
(JA 661-62.)
Given the curative statements, and the instruction to the jury to disregard the prosecutor’s
remark, any prejudice from the prosecutor’s remarks were dissipated by the Court’s admonition.
4. The Statements Taken Together.
Reviewing the statements taken as a whole, the prosecutor’s misconduct is not flagrant.
Under the first factor, “whether the remarks tended to mislead the jury or prejudice the accused
[including whether the trial judge gave an appropriate cautionary instruction to the jury]” Abboud,
438 F.3d at 584 (alteration in the original), the statements are not the type that would mislead the
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jury. Exhibit 67 was likely not even seen by the jury, and the remaining statements were addressed
clearly and directly by the district court. Further, while the statements may have been prejudicial, the
district court’s instruction to the jury dissipated any prejudice from the statements. As a result, the
first factor weighs against Billman.
The second factor requires the Court to look at whether the improper remarks were isolated
or extensive. Id. The three instances complained of by Billman, spread over a multi-day trial, do not
rise to the level of extensive improper remarks. Accordingly, this factor weighs against Billman as
well.
The third factor requires a review of whether the improper evidence and remarks were
“deliberately or accidentally placed before the jury.” Exhibit 67’s introduction appears to have been
an unintentional violation of the parties’ stipulation. While the prosecutor’s questioning of Slater
was obviously intentional, Slater was aware that he should avoid any testimony about prior
violations, making it appear that Slater’s response was not solicited by the prosecution and may have
been accidental. The statements regarding the Exhibit 50 photograph were intentional, but the
prosecutor at side-bar asserted that she did not intend to suggest that the photograph was evidence
of the crime. It thus appears that her statements were not deliberately placed before the jury.
Lastly, the court examines the strength of the evidence against the defendant. In this case,
the evidence was not particularly strong. However, there was sufficient evidence supporting
Billman’s possession of the 410-gauge shotgun.
IV. Cumulative Errors Resulting in a Denial of a Right to a Fair Trial
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This Court reviews the cumulative effect of errors made at trial de novo in order to determine
whether the errors created a trial that amounted to a denial of due process. Lundy v. Burson, 888 F.2d
467, 481 (6th Cir. 1989). Billman asserts that the denial of his suppression motion, the district
court’s ruling on his insufficient evidence claim, and the prosecutor’s misconduct constitute errors
that should result in a new trial. However, as addressed above, none of the district court rulings that
Billman complains of above are errors, and, as such, they do not impact Billman’s due process rights
and do not constitute grounds for reversal.
V. CONCLUSION
For the reasons stated above, this Court AFFIRMS the defendant’s conviction.
.
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