United States v. Anderson, Plaze E. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1104
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PLAZE E. ANDERSON, also known as PLAZE THOMAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 CR 83—Rudolph T. Randa, Chief Judge.
____________
ARGUED OCTOBER 30, 2001—DECIDED SEPTEMBER 19, 2002
____________
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit
Judges.
ROVNER, Circuit Judge. A grand jury indicted Plaze
Anderson and four other individuals with conspiracy to
distribute in excess of 50 grams of cocaine base, in viola-
tion of 21 U.S.C. § 846. Plaze Anderson was the only one
who did not plead guilty, choosing instead to go to trial
on the charge. The jury convicted him, and he was sen-
tenced to life imprisonment, a $1,000 fine, restitution of
$1,420, five years of supervised release, and a $100 special
assessment. Anderson now appeals that conviction.
The evidence against Anderson at trial consisted mainly
of the testimony of eight other individuals who had pled
2 No. 01-1104
guilty and could potentially receive sentence reductions
as a result of their testimony. That testimony established
that Anderson was their supplier of crack cocaine and that
he would front the crack to them and they would pay him
after it was sold. The testimony also indicated that Ander-
son took precautions to ensure that neither he nor the
individuals working for him were caught, including mov-
ing the drugs among a number of locations, using rental
cars to transport the drugs in order to avoid detection,
and ensuring that drug transactions did not take place
at residences at which Anderson lived. Anderson’s defense
strategy was to highlight the lack of physical evidence ty-
ing Anderson to the crime. In particular, Anderson em-
phasized the absence of any audio or video linking him to
drugs and the lack of fingerprints connecting him to the
crime. In response to the parade of witnesses testifying
that he was in fact their supplier, Anderson argued that
they were testifying to reduce their own sentences and
therefore were incredible, and that they had agreed among
themselves to frame him in order to obtain that reduction.
To counter that, the government introduced evidence
that at least some of the defendants implicated Ander-
son when first arrested, before they had an opportunity
to consult with the other conspirators. Government wit-
nesses testified that the individuals were interrogated
separately precisely so that they would not have the
opportunity to agree on a cover story. Moreover, the gov-
ernment attacked Anderson’s credibility when Anderson
testified in his own defense. Anderson testified that he
did not know or did not really have a relationship with
a number of government witnesses including Franklin
Jones, Armando Barrios, and Antonio Grant, as well as
with his purported supplier “D.D.” Yet the government
introduced phone records indicating that hundreds of phone
calls were placed from Anderson’s cell phone to those
individuals over a period of months (including 206 calls to
No. 01-1104 3
Jones in a three-month period and 200 calls to Barrios in
a one-month period) thus undermining Anderson’s credibil-
ity.
On appeal, Anderson raises three challenges to his
conviction. First, he asserts that the trial court denied him
a fair trial by improperly disqualifying a juror on the final
day of trial with no alternate available, thus resulting
in an eleven-member jury. He further argues that the
prosecutor made a number of improper remarks in clos-
ing argument, which denied him a fair trial. Finally, he
maintains that the government improperly relied on prior
statements by witnesses to bolster that witness testimony,
thus denying him a fair trial. We consider these argu-
ments in turn, beginning with the challenge to the jury.
I.
On the final day of the trial, the prosecutor informed the
trial court that one of the jurors may have been contacted
by parties associated in the case. The prosecutor then
recounted a series of events that led to his concern. First,
on the preceding day, his office received a call from the
District Attorney’s office in Racine indicating that there
may be a Shelly or a Sandra on one of the current fed-
eral juries who knew some of the parties involved in the
case. The judges in two ongoing cases inquired of their
juries, but found no connection. That night, the prosecutor
was contacted by the Racine Police Department, which
had received a call from Christopher Mayfield, one of the
government witnesses in the trial. Mayfield indicated
that he had a conversation with a woman named Holly
Christiansen, an intimate friend of his, who in the course
of the discussion bet him $100 that Anderson would be
found not guilty. Herriot interviewed Christiansen who
initially denied knowing anyone on the jury. In a subse-
quent interview, Herriot learned that she worked for a
4 No. 01-1104
woman, Alesia Kinlow-Glosson, who was one of the jurors
on Anderson’s jury. Christiansen was reluctant to talk,
fearing that she and her friend would find themselves
in trouble. She wanted immunity for herself or Kinlow-
Glosson before she would provide details. She indicated
that she was to have been on a jury the week prior in
federal court, that Kinlow-Glosson discussed with her
some of the intricacies of jury duty, and that Kinlow-
Glosson currently was a juror in federal court on a Racine
case. Christiansen also stated that she had received a call
from Anderson’s brother telling her that she should not
become involved in the case. Finally, the prosecutor stated
that Christiansen also received a call from the Racine
County Jail from Willie Buckley, the father of Anderson’s
girlfriend, who said she was supposed to have been on the
jury, and that he thought she was going to “work with
them.” She later had the discussion with Mayfield which
was reported to the police. Christiansen’s sister informed
the prosecutor that Christiansen was good friends with
Anderson’s mother, “hung out” with Anderson as well, and
thought that Anderson was “too cool” and would be ac-
quitted because he gets his underlings to do the work
for him. Christiansen’s family also indicated that Chris-
tiansen was getting daily updates from Kinlow-Glosson.
The prosecutor noted that Kinlow-Glosson was frequently
on her cell phone during breaks.
Based on the prosecutor’s statements, the court decided
to conduct an on-the-record in camera hearing, at which
the court and the attorneys for each side could question
Ms. Kinlow-Glosson individually. At that hearing, Kinlow-
Glosson acknowledged that she worked with Holly Chris-
tiansen, but stated that she was unaware that Christiansen
was a friend of Mayfield. She indicated that Christiansen
had been hired by her brother as the receptionist in their
family-run business a couple of weeks prior, and that
she spoke with Christiansen every day during the trial
No. 01-1104 5
in order to get her messages. She denied having discussed
the case with Christiansen but acknowledged telling Chris-
tiansen that she was in federal court on a trial from Racine
County. Kinlow-Glosson then indicated that Christiansen
had called her the day before, which she found surprising
because she never gave Christiansen her number. Kinlow-
Glosson recounted the conversation as follows:
But she called me, gave me the message, and then she
also said to me how is the case going? And she started
asking me well, how long are you guys gonna be there,
that type of questioning. And then she said—what else
did she say to me? She did say—she’s like I want you
to do me a favor. And then I told her that I couldn’t
talk to her anymore, because I started getting kind
of paranoid, because I didn’t even know how she got
the number to call me down here. . . .
Tr. at 584. Kinlow-Glosson further asserted that she did
not know that Christiansen had any relationship to any
of the parties but that she knew Christiansen was from
Racine. Finally, Kinlow-Glosson acknowledged that her
brother had discussed Christiansen with her the day be-
fore. He called to ask Kinlow-Glosson what was going on,
and reported that Christiansen told him some federal
people had called her at work, and she told him she was
going to ask Kinlow-Glosson to deny knowing her. Kinlow-
Glosson’s brother then encouraged Kinlow-Glosson not
to lie and to acknowledge that she knew Christiansen.
Kinlow-Glosson maintained that she could be an impar-
tial juror despite those conversations.
After hearing Kinlow-Glosson’s version of events, the
court determined that she had to be removed from the
jury for just cause. The court noted that she was in daily
contact during the trial with a woman who knew the par-
ties involved in the case and who was hired only a couple
of weeks before the start of the trial. Furthermore, Chris-
6 No. 01-1104
tiansen had told Kinlow-Glosson’s brother that she wanted
Kinlow-Glosson to deny knowing Christiansen. The court
determined that some form of contact had clearly been
made during the trial between a juror and someone con-
nected to the parties, and that the court could not take
the chance that the contact was proper as opposed to im-
proper. The court noted that the situation was even more
troubling if it credited the information provided by the
prosecutor but stated that it did not have to do so for its
decision. The court then stated that it was going to de-
clare a mistrial unless the defendant preferred to agree
to an eleven-person jury and exclude Kinlow-Glosson (no
alternates were empaneled), an option that the court
doubted the defendant would take. After consultation
with his attorney, and against that attorney’s advice,
Anderson agreed to proceed with the eleven-person jury
rather than receive a mistrial.
Anderson now contends that the district court abused
its discretion in determining that there was “just cause”
to dismiss Kinlow-Glosson. Federal Rule of Criminal Pro-
cedure 23(b) provides that:
Juries shall be of 12 but at any time before verdict
the parties may stipulate in writing with the approval
of the court that the jury shall consist of any number
less than 12 or that a valid verdict may be returned
by a jury of less than 12 should the court find it nec-
essary to excuse one or more jurors for any just cause
after trial commences. Even absent such stipulation,
if the court finds it necessary to excuse a juror for
just cause after the jury has retired to consider its
verdict, in the discretion of the court a valid verdict
may be returned by the remaining 11 jurors.
Anderson claims that the court could not properly have
found just cause for removing Kinlow-Glosson, and that
it improperly relied on hearsay from the prosecutor in
No. 01-1104 7
making its decision. The latter claim is belied by the rec-
ord, in which the court makes clear that its determina-
tion of just cause is not dependent on crediting the pros-
ecutor’s statements. Therefore, the only issue here is
whether the court had a sufficient basis independent of
those statements to find just cause.
“Just cause” is undefined in either Rule 23 or the advisory
committee’s notes, and consequently courts have ascer-
tained its meaning on a case-by-case basis. United States
v. Araujo, 62 F.3d 930, 934 (7th Cir. 1995). Courts have
found just cause to dismiss jurors for a variety of reasons,
including juror illness or unavailability, and evidence
indicating that the juror is no longer able to render an
impartial verdict. United States v. Thomas, 116 F.3d 606,
613-14 (2nd Cir. 1997). Dismissals based on the lack of
impartiality have included myriad factual situations,
including jurors who felt threatened by one of the parties,
who were discovered to have a relationship with one of
the parties, or whose circumstances otherwise changed
during the trial so that they were no longer capable of
rendering an impartial verdict. Id. and cases cited therein;
see also United States v. Symington, 195 F.3d 1080, 1085
(9th Cir. 1999); United States v. Barone, 114 F.3d 1284, 1307
(1st Cir. 1997). That change of circumstances casting
doubt on the juror’s impartiality may include evidence of
improper extrinsic contact. For instance, in Barone, the
court held that there was just cause for dismissal where
a juror was informed during the trial by a Federal Protec-
tive Officer that the juror’s cousin had been represented
by defendant’s counsel. Similarly, in United States v.
Edwards, 188 F.3d 230, 235-36 (4th Cir. 1999), the court
found no abuse of discretion where the trial court dis-
missed a juror who had received a phone call at home
telling him that “those two brothers need your help”
[presumably referring to the defendants], and the juror
indicated that he was surprised that someone had his
8 No. 01-1104
home number and was “shocked” and “scared” after the
incident. In those cases, the juror’s own assessment of
his impartiality was not controlling. In fact, the Edwards
court had not even asked the juror whether he could
continue to serve impartially, 188 F.3d at 236, and the
Barone court held that “a juror’s representations regard-
ing her ability to perform fairly and impartially are not
dispositive,” 114 F.3d at 1307.
We are similarly presented with a situation in which
contact outside the trial casts doubt on the ability of
the juror to serve impartially. Considering only Kinlow-
Glosson’s own testimony, the district court had ample
evidence upon which to question her impartiality and
determine that just cause existed for her dismissal. The
court was presented with a rather bizarre sequence of
events as set forth by Kinlow-Glosson. She informed the
court that Christiansen was hired by her brother to work
at the family-run business a mere two weeks before the
trial, that Christiansen was from Racine, that she had
informed Christiansen that the trial involved Racine,
and that she spoke with Christiansen every day in order
to retrieve her work messages. She further stated that
Christiansen called her during the trial even though she
had never given Christiansen her number, that Chris-
tiansen asked her some questions about how the case
was proceeding and then began to request a favor from
her, and that she terminated the conversation because
she “started getting kind of paranoid” and did not know
how Christiansen even got her number. Finally, Kinlow-
Glosson then indicated that she had a conversation with
her brother, in which he informed her that Christiansen,
after speaking with “some federal people” at work, wanted
her to deny that she knew Christiansen. Faced with
that testimony alone, the district court certainly could
conclude that Kinlow-Glosson’s ability to serve impartially
had been compromised. Kinlow-Glosson herself was trou-
No. 01-1104 9
bled by the conversation with Christiansen and with her
brother. Those conversations were enough to indicate that
Christiansen had an interest in the case and that she was
affirmatively attempting to influence the case. The court
was not required to presume that those attempts had fallen
on deaf ears, particularly in this situation in which Chris-
tiansen had already obtained Kinlow-Glosson’s cell phone
number without her permission and inquired about the
trial in a manner that made her feel “paranoid,” and in
which Kinlow-Glosson was in daily contact with Chris-
tiansen. No further inquiry was required by the court
because Kinlow-Glosson’s own statements established
that she had been adversely affected by outside contact.
Of course, the prosecutor’s information intensifies the
possibility of jury tampering, but that information was
not at all necessary for the district court to properly de-
termine that Kinlow-Glosson should be dismissed for just
cause. The district court did not abuse its discretion in so
determining, and therefore this challenge is without merit.
II.
Anderson next argues that he was denied a fair trial
by the prosecutor’s improper remarks during closing
arguments. He identifies four categories of improper re-
marks: (1) vouching for the credibility of government wit-
nesses; (2) comments concerning Anderson’s Fifth Amend-
ment right to remain silent; (3) statements regarding
the reasonable doubt standard; and (4) references to the
larger social context of crime and drugs.
Anderson faces an uphill battle in this challenge because
none of the identified statements were objected to at trial,
and therefore our review is limited to plain error. United
States v. Scott, 267 F.3d 729, 740 (7th Cir. 2001). Generally,
our review of improper comments by a prosecutor in-
volves a two-part inquiry. First, we examine the com-
10 No. 01-1104
ments in isolation to determine if they were improper. Id.
If we determine that the comments were improper in the
abstract, then if the remarks do not violate a specific trial
right such as the right against self-incrimination, we must
examine the record as a whole to determine whether those
comments deprived the defendant of a fair trial. Id.; United
States v. Mietus, 237 F.3d 866, 870 (7th Cir. 2001). We
consider five factors in making that assessment: “1.) the
nature and seriousness of the misconduct; 2.) the extent to
which the comments were invited by the defense; 3.) the
extent to which any prejudice was ameliorated by the
court’s instruction to the jury; 4.) the defense’s opportunity
to counter any prejudice; and 5.) the weight of the evidence
supporting the conviction.” 267 F.3d at 740, quoting United
States v. Amerson, 185 F.3d 676, 686 (7th Cir. 1999). Be-
cause Anderson failed to object to the remarks when they
were made, the plain error standard additionally requires
that Anderson “ ‘establish not only that the remarks denied
him a fair trial, but also that the outcome of the proceed-
ings would have been different absent the remarks.’ ” Id.,
quoting United States v. Durham, 211 F.3d 437, 442 (7th Cir.
2000) and United States v. Granados, 142 F.3d 1016, 1022
(7th Cir. 1998). Anderson identifies a plethora of statements,
which we will consider in turn but which are not equally
meritorious.
Anderson points to a number of statements by the
prosecutor which he characterizes as impermissibly
vouching for the credibility of the government witnesses.
We have identified two related types of vouching which pose
the danger of undermining the jury’s role as an independent
factfinder. United States v. Renteria, 106 F.3d 765, 767 (7th
Cir. 1997); United States v. Clarke, 227 F.3d 874, 884 (7th
Cir. 2000). A prosecutor may not express her personal belief
in the truthfulness of a witness, because that could place
the prestige of the government behind the witness. 106 F.3d
767. And a prosecutor may not imply that facts not before
No. 01-1104 11
the jury lend a witness credibility, because that invites the
jury to speculate as to the existence of facts outside the
adversarial process of the trial. Id. Anderson identifies a
number of statements in the first closing argument as
examples of impermissible vouching, which we consider
individually:
There’s been a lot of talk about have you been promised
anything? Have you been guaranteed anything? Each
and every one of these Defendants has testified. And
Plea Agreements—you will have a few of those Plea
Agreements here. And Mr. Phillips talked about well,
you will get cooperation no matter what, because the
Government is going to give you—whether it’s truthful
or not. As if each and every one of these Defendants
would come in and somehow pull the wool over all of
our eyes. The Court, the F.B.I., the Racine Police
Department, the U.S. Attorney’s office.
This isn’t the first drug case we’ve handled. We don’t
just trust people off of face value. That’s why there
are investigations. That’s why there’s surveillance.
That’s why people sit out, watch to see who comes, who
goes. That’s why they check phone records.
Tr. at 683-84. These statements considered in the ab-
stract present the danger of vouching identified above,
in that they imply that the jury should trust the credibil-
ity determination already made by the government and
the court. If the prosecutor had proceeded to so argue, it
could well have impacted Anderson’s right to a fair trial.
In United States v. Whitaker, 127 F.3d 595, 606-07 (7th
Cir. 1997), however, we held that similar statements ap-
proached the direction of impermissible vouching but “had
not yet arrived.” The prosecutor in Whitaker argued as
follows:
When we interview people alleged to be involved in
drug trafficking, ladies and gentlemen, we don’t take
12 No. 01-1104
what these people say at face value. We take precau-
tions to make sure that any individual coconspirator
being interviewed, that he is not told what other
coconspirators—
. . . I believe you will find that the Government has
struck a bargain that is in it’s [sic] favor and that
these plea agreements assure us of what these wit-
nesses are testifying about. . . .
. . . on numerous occasions the defense attorneys tried
to show here that we had suggested to witnesses
what to say, that statements of others had been shared
with them, and that was simply not the case and
you heard the testimony—
Id. at 606. Those statements are analogous to the ones
before us today, implying that the statements here are
not impermissible vouching, although in Whitaker the
defendant had the benefit of objections to the statements
that were sustained by the court. Placing the comment in
the context of the argument and the trial as a whole,
the potential danger that the statements could be inter-
preted as vouching is somewhat ameliorated. Anderson’s
defense essentially was that the government witnesses
were all lying in order to obtain a reduction in their sen-
tences and that they had agreed to wrongly accuse Ander-
son. An issue at trial therefore was whether the witnesses
had conferred before making statements implicating And-
erson. The above statement represented a response to the
notion that the witnesses could obtain the reduction by
lying. Similar in nature are two statements identified in
the prosecutor’s rebuttal:
[T]hey have all the motive in the world to tell the truth.
Because the only way they’re going to get a time cut
is if they are telling the truth.
I didn’t fall off a turnip truck two days ago. This is
not a complicated case. We look at each aspect of
No. 01-1104 13
this investigation. We have looked to corroborate the
statements of each individual. . . .
Tr. at 704. We have previously held that it is permissible
for a prosecutor to point out that witnesses are required
to tell the truth under their plea agreements. United
States v. Clarke, 227 F.3d 874, 885 (7th Cir. 2000); Renteria,
106 F.3d at 767. The initial statement is a proper comment
on the plea agreement requirement, and the latter one
again is similar to the statements upheld in Whitaker.
Regardless of whether those statements as a whole neared
the line of impermissible vouching or crossed it, as is
certainly possible here, it does not warrant a new trial as
we will discuss shortly.
Before engaging in that analysis, however, we con-
sider other allegations of impermissible vouching in the
prosecutor’s rebuttal. First, Anderson objects to the follow-
ing statement [made in regard to testimony by Mitchell
that he had multiple girlfriends simultaneously who
gave him keys, and that he stored drugs at their homes
without their knowledge]:
Mr. Anderson talked about Mr. Mitchell. He was proud
of sex and he had gotten this preposterous story,
according to Mr. Phillips. Doesn’t make any sense
to him. Well, maybe it doesn’t make sense to many
people, but I am here to tell you it happens. There are
some people in this world that are in need. There are
some people in this world that may not—that are a
little bit more trusting.
Tr. at 711. Anderson objects to the phrase “I am here to
tell you it happens.” That remark is a generic statement
which would be understood as asking the jury to apply
common sense and to consider a competing inference,
both of which are proper argument. The prosecutor did
not pair it with any personal comments about drug con-
14 No. 01-1104
spirators particularly or imply any knowledge foreign to
the jury; rather, he placed it in the context of statements
about human nature generally, which may properly be
considered by the jury. Moreover, it was invited by the
defense counsel’s closing argument, in which the defense
counsel stated that it “isn’t true that these girls are that
stupid and that he would somehow secure their trust
and a key to somehow hide the drugs in the ceiling. I
don’t have such a ceiling. That’s—it’s preposterous.” Tr.
at 695. Therefore, the statement is not improper in the
abstract, and considered in context would not adversely
impact the fairness of the trial.
Anderson also identifies a more troubling statement
on rebuttal:
Investigator Herriot may be a big guy, but he’s not
all that intimidating. And I know from personal experi-
ence he’s a very nice guy. So if he talks to somebody,
he’s probably talking to them because he’s a nice guy,
not because he’s trying to intimidate a witness that’s
going to testify.
Tr. at 704, 713-14. That is a classic case of injecting facts
within the personal knowledge of the prosecutor into a
case, and is blatantly improper. It is the type of error
that should have been apparent to the prosecutor, and
which will not be tolerated by the courts. Nevertheless,
we must consider whether the error impacted the fair-
ness of the trial generally, and additionally under the
plain error standard we must consider whether the out-
come of the trial would have been different absent the
statement.
In the context of the trial as a whole, we cannot say
that the plain error standard has been met. Considering
all of the allegedly improper statements, there is no rea-
son to believe that the outcome of the trial would have
been different absent those challenged statements. The
No. 01-1104 15
tenor of the argument as a whole, placed in context, was
that the government did not disregard standard investiga-
tive rules in taking the statements from the govern-
ment witnesses, which might have allowed for collusion
among them, and that the plea agreements required the
witnesses to tell the truth. It thus related to the defense
presented. Moreover, the court instructed the jury that
they are the ones responsible for determining credibility
and that the statements made in closing arguments do
not constitute evidence. Most importantly, the evidence
against Anderson was overwhelming. The government pro-
duced numerous witnesses who testified in detail regard-
ing Anderson’s role in the drug conspiracy, and that
testimony was consistent in many specifics. Although
many of the government witnesses had an interest in
the proceeding because they could potentially reduce
their sentences, the consistency was found as well in
statements taken from initial interrogations before any
opportunity to collude could arise. That undermined sig-
nificantly Anderson’s defense. Anderson further weakened
his own defense by denying having any relationship with
a number of persons who testified against him, when
phone records established hundreds of calls from his
cell phone to those individuals in a short period of time.
In the context of the trial as a whole, and particularly
under the plain error standard, the statements do not
constitute reversible error.
Anderson identifies other statements as improper, but
they are much less significant than the ones already
considered. In respect to the reasonable doubt standard,
the prosecutor stated that “your job is not to search for
doubt, but to search for the truth.” Even if that is deemed
improper, however, it was invited by defense counsel’s
own improper attempt to define the reasonable doubt
standard in Anderson’s closing argument, and Anderson
fails to identify any way in which that remark could have
altered the outcome of the trial.
16 No. 01-1104
Anderson also states that the prosecutor inflamed the
passions of the jury by stating in his rebuttal argument: “if
you want the cancer to grow, do nothing. If you want a
change, the answer is guilty.” Tr. at 719. Although Ander-
son characterizes that reference as an allusion to the
drug trade generally, and an attempt to encourage the
jury to use the trial to redress social wrongs, that is not
borne out by the record. The only other reference to a
cancer is in the beginning of the prosecutor’s first clos-
ing argument, when the prosecutor refers to Anderson
as a drug supplier in Racine and states that when deal-
ers are removed from a community without removing
the supplier, “they grow back like cancerous growths.”
Therefore, the reference was to the conspiracy before
the jury, and particularly to Anderson’s status as the
supplier for the dealers. That remark is isolated and alone
does not cross the line to an improper comment.
Finally, Anderson argues that the prosecutor imper-
missibly commented on his failure to testify. The pros-
ecutor in closing argument referred to a conversation
that Anderson had with the police shortly after McCree
was arrested. McCree’s car was stopped because he fit
the description of a person wanted for an armed robbery,
and the police found over 300 grams of crack cocaine in
the car. To provide an alibi for the robbery, McCree in-
formed the officers that he had been at the apartment
in which Anderson and his girlfriend resided. The police
then proceeded to question Anderson but Anderson de-
nied knowing McCree at that time. The government
introduced evidence at trial that McCree was Ander-
son’s cousin. Anderson later voluntarily went to the
police station to view a photo of McCree, and declared
that he recognized him but did not know his name and
did not know him very well. The police then questioned
Anderson as to why McCree would have in his wallet two
traffic citations issued to Anderson. Anderson indicated
No. 01-1104 17
that he did not know how that happened, and refused
to answer any further questions. In reference to that in-
cident at closing argument, the prosecutor stated:
At this point, Mr. Anderson says I don’t want to an-
swer anymore questions. I am not going to talk any-
more. Because he’s afraid he is going to be—he’s
already too close to be associated with Mr. McCree.
He’s the cousin. He has the traffic citations. He doesn’t
want to answer any questions . . . because he’s smart.
He knows only bad things can happen from this point
forward, so he doesn’t answer.
Tr. 678. That was a proper remark by the prosecutor in
the context of this trial. Generally, a prosecutor may
not comment on a defendant’s decision to remain silent.
That prohibition, however, is not absolute. For instance,
where a person chooses to testify, the Fifth Amendment
is not violated by the prosecution’s use of pre-arrest si-
lence to impeach the defendant’s credibility. Jenkins v.
Anderson, 447 U.S. 231, 238 (1980); Ouska v. Cahill-
Masching, 246 F.3d 1036, 1046 (7th Cir. 2001). Anderson
chose to take the stand in this case and testified specifi-
cally concerning his decision to remain silent. Anderson
testified:
. . . and at that point in time I told the Cudahy Police
that I don’t want to talk to them about Mr. McCree,
because whatever he did, if he robbed somebody of
something, I know for a fact that I wasn’t involved.
Didn’t have nothing to do with it. . . . .
Tr. at 615. Anderson therefore addressed his decision to
terminate the police interview, portraying it as stemming
from his innocence of the crime under investigation. The
prosecutor in closing argument may properly point out
to the jury another reasonable inference that could be
drawn from that sequence of events. There is no error in
that remark at all, and therefore no constitutional violation.
18 No. 01-1104
III.
Anderson’s remaining claim is similarly unavailing. He
argues that the government deprived him of a fair trial
by improperly bolstering its witnesses’ credibility with
their post-arrest statements. Because no objections were
raised at trial, our review again is for plain error. He re-
fers to the introduction of testimony regarding statements
made by the witnesses to law enforcement officers subse-
quent to their arrests, which identified Anderson as their
drug supplier.
Federal Rule of Evidence 801(d)(1)(b) defines as “nonhear-
say” prior consistent statements by a witness that are
offered to rebut a charge of recent fabrication or improper
influence or motive. Fed. R. Evid. 801(d)(1(B); Tome v.
United States, 513 U.S. 150, 157 (1995). Such statements
are admissible if they satisfy a four-part test:
(1) the declarant testifies at trial and is subject to cross-
examination, (2) his prior statement is indeed consis-
tent with his trial testimony, (3) the statement is
offered to rebut an explicit or implicit accusation of
recent fabrication, and (4) the statement was made
before the declarant had a motive to fabricate.
United States v. Ruiz, 249 F.3d 643, 647 (7th Cir. 2001).
Anderson asserts that the statements were not offered
to rebut allegations of recent fabrication or improper mo-
tive. A review of the transcript, however, reveals that this
claim is without merit. Anderson’s first citation to such
offending witness testimony is in fact a citation to a cross-
examination by his own attorney. That clearly is not an
instance of the government attempting to bolster its
witness.
The remaining transcript citations fare no better. All
but one of them are to redirect examinations by the gov-
ernment, and in every instance we isolated questions in
the cross-examination in which the defense counsel alleged
No. 01-1104 19
that the witness had decided to frame Anderson and/or
that the witness had consulted with coconspirators while
incarcerated in an effort to frame him. That line of ques-
tioning was precisely the type of charge of recent fabrica-
tion that Rule 801 addresses. The defense counsel’s theory
was that the coconspirators communicated with each
other after their arrests while they were incarcerated
in proximity to each other, and that they decided to
frame Anderson to reduce their own sentences. The post-
arrest statements by those witnesses implicating Anderson,
taken before any opportunity to consult arose, were thus
admissible to refute the claim that they decided to falsely
implicate him later. There are only two references by
the government to such statements which arguably did
not follow a direct charge of recent fabrication. First, the
prosecutor mentioned in his opening statement that
three witnesses identified Anderson as their supplier
when arrested. Second, on direct examination of govern-
ment witness Antonio Grant, the prosecutor elicited tes-
timony regarding his post-arrest statement. Those iso-
lated incidents did not deprive Anderson of a fair trial. The
initial incident was not evidence at all, but rather was
an opening statement that accurately reflected the evi-
dence that ultimately would be introduced. Anderson’s
counsel in his opening statement made clear that part of
the defense strategy would be to allege that the govern-
ment witnesses colluded with each other to frame Ander-
son. Tr. at 67-68. Moreover, before the prosecutor began
its direct examination of Grant, Anderson’s counsel em-
barked on that strategy in cross-examining Franklin
Jones by asking him if he and Marcus Caldwell told any-
one in Waukesha Jail that they were going to frame
Anderson. Tr. at 96. In any event, the questions by the
prosecutor to Grant could not possibly have deprived
Anderson of a fair trial because that same informa-
tion would have been elicited on redirect examination of
Grant. In his cross-examination of Grant, Anderson’s coun-
20 No. 01-1104
sel questioned Grant as to the timing of his statement
to police implicating Anderson, and repeatedly asked Grant
if he spoke with other persons at the jail about framing
Anderson. Those questions regarding the timing of his
statement to the police and the implication that he con-
sulted with others to frame Anderson satisfied the require-
ments of Rule 801 and opened the door to the introduc-
tion of the prior consistent statements. The government
elicited testimony regarding those statements on redirect,
and therefore the introduction of that same testimony
on direct examination—even if erroneous—had no impact
on the trial. This claim is without merit.
The decision of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-19-02