United States v. Willis, Hugh ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-4616 & 05-4617
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HUGH WILLIS and VICTOR TROUT,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 01 CR 676-1 & 01 CR 676-3—John F. Grady, Judge.
____________
ARGUED NOVEMBER 30, 2007—DECIDED APRIL 23, 2008
____________
Before EASTERBROOK, Chief Judge, and FLAUM and
WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. On December 19, 2000, a ship-
ment of 1300 Sony digital cameras disappeared from
O’Hare International Airport soon after arriving on an
American Airlines flight from Japan. After an investiga-
tion resulted in confessions from two American Airlines
employees—defendants Hugh Willis and Victor Trout—the
United States charged them both with stealing and con-
spiring to steal a foreign shipment. A jury convicted Trout
of conspiracy but acquitted him of the theft charge, result-
ing in twenty-seven months’ imprisonment. Another
2 Nos. 05-4616 & 05-4617
jury convicted Willis on both counts, earning him forty-one
months’ imprisonment. These appeals followed, raising
a number of issues concerning the administration of the
trials and one related to sentencing. For the reasons set
out below, we affirm Trout’s and Willis’s convictions,
but vacate Willis’s sentence and remand for resentencing.
I. Background
On the afternoon of December 18, 2000, a shipment of
1300 Sony digital cameras arrived at O’Hare International
Airport on an American Airlines flight. The shipment
came from Japan, and Nippon Express was supposed to be
pick it up the next day. But when Nippon Express came to
get it, the cameras, all $690,885 worth, were gone. Under-
standably put out by the loss, Nippon Express contacted
American Airlines who, in turn, contacted the Chicago
Police Department to investigate.
The investigation soon bore fruit. On the night of the
disappearance, an American Airlines employee, Rosarito
Solomon, had come upon three individuals—Hugh Willis,
a man named Mark Patterson, and an unidentified man
in a ski mask—taking apart what appeared to be a ship-
ment of cameras. Their behavior was suspicious for a
number of reasons. Willis told Solomon that they were
breaking down the shipment because it had been crushed
en route to London, but the men hadn’t filled out a damage
report as required. Also, the men were working outside
and shipments were typically broken down indoors. And
based on the tracking number for the shipment, the
contents were supposed to stay in Chicago, not move on to
London as Willis had said. Over the next few days, cam-
eras started to turn up in strange places around the air-
Nos. 05-4616 & 05-4617 3
port; three were found in the back of a luggage tug and
another one showed up in a misplaced cart behind a
privacy fence.
On December 22, 2000, Chicago detectives Milorad
Sofrenovic and Stephan Combes interviewed Willis about
the lost cameras. At first, Willis denied any knowledge. But
based on what Sofrenovic already knew about Willis’s
involvement, he arrested him anyway. Willis soon con-
fessed, first verbally then in writing. As he recounted it,
the heist was a straightforward one. Willis said that
when the shipment arrived, he decided to steal it, thinking
the shipment consisted of camcorders. So he, Patterson,
and Trout began breaking down the load of cameras
and putting them into freight cars. Trout then took the
shipment out of the cargo area, and later that night, the
men divvied up the cameras, eventually taking them off-
site and selling them. Willis would receive $1500 for his
lot of the cameras.
A few days later, Trout confessed to Officers Sofrenovic
and Combes as well. He said that Willis had called him
on December 18 to ask if he wanted to make some extra
money, but Trout was noncommital. Later, Patterson
called asking if Trout would move the load of cameras.
Trout agreed and moved the cameras with the understand-
ing that he would be paid after they were sold; he said
he would’ve been happy to receive $200 for his time.
Circumstantial evidence made Trout’s involvement
plausible. He was at work but unaccounted for from 4 P.M.
on December 18 until 2 A.M. on December 19—the time of
the robbery. And he had access to the luggage tug in
which the three misplaced cameras were found.
In light of this evidence and their confessions, indict-
ments were forthcoming for both Trout and Willis, charg-
4 Nos. 05-4616 & 05-4617
ing them with stealing a foreign freight shipment in
violation of 18 U.S.C. §§ 659 & 2 and conspiring to do so
in violation of 18 U.S.C. § 371. A jury acquitted Trout of
the actual theft, but convicted him of conspiracy, re-
sulting in twenty-seven months’ imprisonment. A sepa-
rate jury convicted Willis on both counts, and the judge
sentenced him to forty-one months’ imprisonment. In
reaching this sentence, the court found that Willis had
perjured himself on two separate occasions and added
two, two-level obstruction-of-justice enhancements. These
appeals followed.
II. Discussion
Together, Willis and Trout raise five issues on appeal,
four of which concern the administration of the trial and
one that concerns sentencing. Willis challenges the gov-
ernment’s use of a peremptory strike against the only
African-American venireperson and the district court’s
imposition of two obstruction-of-justice enhancements
in calculating his sentence. In his appeal, Trout submits
that the government both committed prosecutorial mis-
conduct by objecting during his attorney’s closing argu-
ment and improperly commented on his decision not to
testify at trial. He also claims that the district court im-
properly handled a jury note sent out during deliberation.
We discuss each issue in turn, providing additional facts
as necessary.
A. Willis’s Appeal
1. Batson Claim
On appeal, Willis claims that the dismissal of the only
African-American venireperson constituted a Batson viola-
Nos. 05-4616 & 05-4617 5
tion. Of the forty people called in the venire for Willis’s
trial, only one—Juror No. 1—was African American. After
a recess between voir dire and the selection of the jurors
for trial, the government asked the court if it could pose
a few more questions to Juror No. 1. She had recently
moved from being the manager of a fast-food restaurant
to the ranks of the unemployed. The government doubted
that a person would voluntarily reduce her income from a
managerial salary to unemployment benefits. And the
government’s attorneys wondered if theft or misconduct
precipitated the move, potentially fomenting “animosity
towards people in authority” and ostensibly biasing her
against the government’s case. Because she was the only
African-American juror, the government did not want to
immediately strike her. So it proposed asking her a few
more questions to clear up her employment history instead.
Willis’s attorney characterized the government’s mo-
tivations less charitably. He responded to the government’s
request by voicing his “concern . . . that the government
[wa]s hunting . . . for . . . some independent reason” to
strike the “single African-American individual.” The
court ultimately denied the government’s request for
more questioning. But because it considered the govern-
ment’s concerns to be “real” and “reasonable,” it said
that it would be “within [the government’s] rights to
excuse her . . . on a peremptory challenge.” He told
Willis’s attorney that he could “make a Batson objection,
but [he didn’t] think it would be well taken.” After the
court made its decision, Willis’s attorney said that he
“wanted to note for the record the action of the govern-
ment striking Juror No. 1, . . . the only African-American
in the entire 40-member venire.” The court recognized his
concern, but said that it could not “require the govern-
6 Nos. 05-4616 & 05-4617
ment to take a juror that it would not otherwise take just
because that juror happens to be black.”
The Equal Protection Clause of the Fourteenth Amend-
ment prohibits a party from dismissing a potential juror
because of that juror’s race, Batson v. Kentucky, 476 U.S. 79(1986), a prohibition that applies to the federal govern-
ment as a feature of due process. Dunham v. Frank’s Nursery
& Crafts, Inc., 919 F.2d 1281, 1282 n.4 (7th Cir. 1990). Courts
preserve this substantive right through a three-part proce-
dural device: (1) if an objecting party makes out a prima
facie showing that the opposing party has dismissed a
potential juror for impermissible reasons, (2) the burden
shifts to the opposing party to articulate a non-discrimina-
tory reason for the dismissal, (3) after which the district
court must determine whether this reason is deserving of
belief and whether the objecting party has proved an equal
protection violation. Batson, 476 U.S. at 97-98.
Were the government’s concerns over Juror No. 1’s
employment history the actual reason for dismissing her?
The parties dispute how much deference we should give
the district court’s affirmative answer to this question.
In the government’s estimation, Willis forfeited this
claim by never raising a proper Batson challenge in the
district court, meaning we would only review the deci-
sion for plain error and will only reverse if “a discrimina-
tory intent is inherent in the prosecutor’s explanation.”
United States v. Chandler, 12 F.3d 1427, 1432 (7th Cir. 1994).
Willis on the other hand argues that he preserved his
Batson claim below, which would entitle him to de novo
review as to his prima facie case, see Mahaffey v. Page,
162 F.3d 481, 484 (7th Cir. 1998), but a clear error stand-
ard of review with respect to discriminatory intent. United
States v. Jones, 224 F.3d 621, 624 (7th Cir. 2000).
Nos. 05-4616 & 05-4617 7
In light of the record below, Willis did not forfeit his
Batson claim. A Batson inquiry is very specific: is a party
trying to eliminate a potential juror because of that person’s
race or gender? The answer to this question most often
hinges on the credibility of the race-neutral reason put
forth to strike the venireperson. Batson, 476 U.S. at 98 n.21.
And evaluating the believability of the proffered reason
turns on the constellation of facts surrounding the case and
the voir dire—an evaluation better made by the district
court. Id. When a party simply objects to the opposing
party’s use of a peremptory challenge, the court has no
reason to evaluate whether the reason for dismissal was
instead a pretext for discrimination; the party could have
eliminated the venireperson for any reason, good or bad.
As a practical matter then, this Court can only find a Batson
violation articulated for the first time on appeal if the
discrimination is plain on the face of the party’s justifica-
tion in the district court, and so the standard of review is
plain error. But where the prosecutor gives a race-neutral
reason for dismissal to fend off a Batson claim in advance,
a different situation arises. See Hernandez v. New York, 500
U.S. 352, 359 (1991). The district court’s and the parties’
focus are squarely on the question of discrimination,
permitting a fulsome analysis of the relevant facts sur-
rounding the peremptory strike and permitting a slightly
more probing standard of review by this Court.
That is what happened in the district court. The court
evaluated and credited the government’s non-discrimina-
tory reasons for dismissing Juror No. 1 in light of an
accusation—first potential, then actual—that the govern-
ment dismissed her because of her race. The govern-
ment prefaced its request for additional questioning
with the observation that its concerns were “in line with
8 Nos. 05-4616 & 05-4617
what [Willis’s attorney] want[ed] to talk to you about . . . .
It’s obvious there’s only one African-American juror on
the venire.” And the government’s attorney said that he,
“as an individual, did not want to strike the only African-
American prospective juror.” In addition, Willis’s attorney
accused the government of “hunting . . . for some . . .
independent reason” to strike Juror No. 1, whom he
called the “single African-American individual” in the
venire. And after the court’s decision, he renewed his
objection to the dismissal of Juror No. 1, “for the record,
the only African-American in the entire 40-member
venire.” Finally, the court characterized the government’s
concerns as “real” and “reasonable,” and it added that
“putting myself in the position of the prosecutor in this
case, I’d have the same concerns.” The court also “kn[e]w
that this juror would not be excused by the government
because of her race.” And although the court said it
would “listen to [Willis’s attorney] if he want[ed] to raise
a Batson objection,” the court did not “think it would be
well taken.” Although the treatment of the issues was not
ordered as Batson would have it, this colloquy suffices
to preserve Willis’s Batson claim for review.
Despite the standard of review, these facts are insuffi-
cient to show a Batson violation. The issue on appeal is
solely whether the government’s non-discriminatory
reason was valid and worthy of belief. It’s unnecessary
to determine whether Juror No. 1’s dismissal sufficed to
establish Willis’s prima facie case. The government gave
its race-neutral justification for striking Juror No. 1, and
the trial judge ruled that this reason was not a pretext
for discrimination. So the “issue of whether [Willis] has
established a prima facie case is moot.” United States v.
Jones, 224 F.3d 621, 624 (7th Cir. 2000).
Nos. 05-4616 & 05-4617 9
Nonetheless, the government offered a valid reason for
striking Juror No. 1, and there is no indication that the
district court erred in crediting these reasons as the “real”
reasons for dismissal. To survive a Batson challenge, the
reason offered by a party for its use of a peremptory
challenge doesn’t have to be an objectively good one; it
just can’t be race or gender and it must be the actual rea-
son motivating the party. United States v. Brown, 34 F.3d
569, 571 (7th Cir. 1994). The jury in this case would ulti-
mately be impaneled to decide whether Willis stole from
his employer for personal gain. Although it was by no
means inevitable, it was not unduly speculative to think
that Juror No. 1 may not have left her manager-level job
voluntarily to become unemployed. A juror who poten-
tially harbored animosity towards a former employer
may have been, in the government’s eyes, a bit too sympa-
thetic to a defendant charged with theft from an employer.
This may not have supported a dismissal for cause, but
“under the American legal system counsel for both parties
have a limited number of peremptory strikes to use
according to their individual intuitions regarding jurors.”
Brown, 34 F.3d at 571. And when viewed in its entirety,
the government’s statements to the court reveal a sen-
sitivity to the dismissal of the only African-American
juror rather than racial animus. Accordingly, Willis’s Batson
claim must fail.
2. Obstruction-of-Justice Enhancements
Willis also challenges the district court’s imposition of
two obstruction-of-justice enhancements for two sepa-
rate incidents of perjury. For his convictions, Willis’s
base offense level was four and the court added on twelve
levels because of the high market value of the 1300 stolen
10 Nos. 05-4616 & 05-4617
digital cameras. The district court then added two more
two-level enhancements for acts of perjury that Willis
committed during a pre-trial suppression hearing and
during trial itself. The court thought that it would be a
“bad message to send” if a single two-level increase
applied for two distinct acts of perjury, so the court added
four more levels for a total offense level of twenty. This
set the Guidelines range at thirty-three to forty-one months’
imprisonment, and the district court ultimately settled on
the maximum, a forty-one-month sentence. The govern-
ment conceded that this was error on appeal, a conclusion
unswayed even after this Court requested supplemental
briefing on the treatment of analogous adjustments under
the Guidelines.
The issue is whether the district court erred in adding
two obstruction-of-justice enhancements for two distinct
acts of perjury, meaning that the point of departure
before application of 18 U.S.C. § 3553(a) should have been
an offense level of eighteen rather than twenty. The text
and commentary of § 3C1.1 do not provide much help.
Section 3C1.1 of the Sentencing Guidelines provides that
a district court should “increase the offense level by
2 levels”:
If (A) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administra-
tion of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to
(i) the defendant’s offense of conviction and any
relevant conduct; or (ii) a closely related offense. . . .
U.S.S.G. § 3C1.1 (2005). The behavior justifying the
enhancement—“obstructive conduct”—is susceptible to
either a broad or a narrow reading; the meaning of the term
Nos. 05-4616 & 05-4617 11
“conduct” can range from an “act” or “manner” to a
“process of carrying out.” WEBSTER’S THIRD NEW INTER-
NATIONAL 473 (1981). As a result, one could—as the district
court did—read the “obstructive conduct” punished by
§ 3C1.1. to consist of a single “act” of obstruction, justi-
fying a separate enhancement for each obstructive act.
Or, as the parties argue, the enhancement could apply
once; a sentencing switch that is either on or off such that
the enhancement applies to the entire “process of carrying
out” the obstruction. Section 3C1.1 does not point to the
appropriate reading, and this creates an ambiguity.
But the text and commentary of other adjustments
provide more explicit guidance. Section 3C1.1 is one of
at least nineteen different adjustments in chapter three
of the Sentencing Guidelines. These provisions all provide
broadly applicable modifications to the base offense level
for “real offense elements”—circumstances of the crime
or of the defendant that apply to some or all criminal
offenses. See U.S.S.G. § 1A1.1 ed. n.4(a); ch.3 introductory
cmt. For three of these adjustments, the Sentencing Com-
mission has provided explicit guidance on how to cal-
culate the offense level when a defendant has committed
multiple acts supporting the same adjustment. Section
3B1.4 provides a two-level adjustment if “the defendant
used or attempted to use a person less than eighteen years
of age to commit the offense.” U.S.S.G. § 3B1.4. Just as a
defendant can perjure himself on more than one occasion,
he can employ more than one minor in committing an
offense. If that’s the case, rather than call for multiple two-
level enhancements under § 3B1.4, “an upward departure
may be warranted.” U.S.S.G. § 3B1.4 cmt. n.3. Similarly,
§ 3C1.2 provides a two-level enhancement when the
defendant “recklessly created a substantial risk of death or
serious bodily injury to another person in the course of
12 Nos. 05-4616 & 05-4617
fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2.
When “the conduct posed a substantial risk of death or
bodily injury to more than one person, an upward depar-
ture may be warranted.” Id. at cmt. n.6. Finally, § 3A1.1
provides for a two-level enhancement where the “defen-
dant knew . . . that a victim of the offense was a vul-
nerable victim,” whereas if a “large number of vulner-
able victims” were involved, this provision calls for a
three-level adjustment. U.S.S.G. § 3A1.1(b)(2).
These three sections make it clear that a sentencing
court should not apply the obstruction-of-justice adjust-
ment more than once for multiple acts of obstruction.
Where a particular adjustment expressly provides for a
higher offense level for multiple acts, as with § 3A1.1’s
treatment of a “large number of vulnerable victims,” it is
not through multiple applications of the enhancement
for each act calling for an adjustment. And where there is
no express numerical increase in the offense level for
multiple acts, the commentary indicates that a de-
parture may be warranted. But no other provision in
chapter three calls for the use of multiple adjustments for
multiple acts, and given that these provisions provide
the same type of adjustment to the defendant’s base offense
level, they should apply in a consistent manner. Thus,
consistent with the commentary in §§ 3B1.4 and 3C1.2,
we hold that multiple acts of perjury produce a single
two-level enhancement under § 3C1.1 and possibly a
higher or above-Guidelines sentence based on the discre-
tion conferred by 18 U.S.C. § 3553(a), not the imposition
of multiple obstruction-of-justice enhancements.
In a sense, this conclusion is largely procedural and
does not substantively alter a district court’s ability to deal
with a serial perjurer. The Sentencing Guidelines are
Nos. 05-4616 & 05-4617 13
famously advisory, and the district court has sub-
stantial discretion in choosing a reasonable sentence; a
discretion that includes consideration of multiple acts of
obstruction. But before this discretion kicks in, the
district court must first properly calculate the advisory
Guidelines range, United States v. Elliot, 467 F.3d 688, 691
(7th Cir. 2006), and to do so means that the court should
only apply the obstruction-of-justice enhancement once.
Although this Court hasn’t plumbed the complexities of
this issue before, our approach in previous cases has
been consistent. See, e.g., United States v. Huerta, 239 F.3d
865, 870 (7th Cir. 2001); United States v. Furkin, 119 F.3d
1276, 1283-84 (7th Cir. 1997). And other circuits have
reached a similar conclusion. See, e.g., United States v.
Ventura, 146 F.3d 91, 97 (2d Cir. 1998); United States v.
Clements, 73 F.3d 1330, 1342 (5th Cir. 1996); United States v.
Vaught, 133 Fed. Appx. 229, 235 (6th Cir. 2005); United
States v. Fields, 963 F.2d 105, 109 (6th Cir. 1992). Accord-
ingly, the district court erred in applying multiple two-
level enhancements for Willis’s perjury. Instead, it
should have analyzed the additional act of perjury as a
basis for a higher or non-Guidelines sentence under the
factors listed in 18 U.S.C. § 3553(a).
B. Trout’s Appeal
1. Prosecutorial Misconduct
Trout argues that the government committed prosecuto-
rial misconduct by objecting during his attorney’s closing
argument. Prior to his arrest, Trout had confessed to
Chicago police officers Sofrenovic and Combes. When
Officer Combes testified, he relied on the notes that he
took during Trout’s interview to remember the specifics
14 Nos. 05-4616 & 05-4617
of what they had discussed, although the notes them-
selves were inadmissible hearsay. During his closing
argument, Trout’s attorney characterized the government’s
case as “boil[ing] down to . . . this statement that they
claim that Mr. Trout made.” He characterized Officer
Combes as a “nice guy” who “knows nothing”and ques-
tioned his reliance on his notes, which were, in his estima-
tion, of dubious value. Trout’s attorney continued,
[T]here is something wrong here with a case in which
the government really only has some handwritten
notes which you don’t even get to hold in your hands
or look at, that say that the defendant is guilty and
that he admitted it. And then these very—
At this point, the government objected, saying that it had
“no objection to the notes going back.” After a brief collo-
quy between the government and the court, Trout’s
attorney objected himself, stating that the government was
“interrupting my closing argument in an improper way.”
The court sustained Trout’s attorney’s objection, calling the
“interruption . . . not warranted,” and the closing argument
continued uninterrupted.
Almost immediately after the jury began deliberating,
it sent out its first note:
Dear Judge, can we see a written copy of the defen-
dant’s statement to the police, even an edited copy?
We know the notes of the [sic] Detective Combes are
not considered evidence, but can we see a copy of his
statement from the arrest report or from the supple-
mental report prepared by the detectives on the case?
Sincerely, the jury.
The judge called the jury into court and explained that
the desired evidence was inadmissible hearsay. The
Nos. 05-4616 & 05-4617 15
court continued: it was regrettable that the jury did “not
have all the information [it] would like to have but . . . this
is frequently the situation in trials where evidence
that might be interesting or even relevant is for one reason
or another excluded from consideration.” The “trier of
fact . . . has to get along without it.”
After the court sent the jury back to resume deliberations,
the government expressed its concern that the court’s
statement might have given the jury the impression that
Combes’s testimony regarding Trout’s statement was
“something they almost can’t consider.” Concerned that
it had “misled them into thinking they can’t rely on
their recollection,” the court called the jurors back in and
told them that they “must rely on [their] recollection
unassisted by the materials” requested of the court. After
the jury resumed deliberating, Trout’s attorney filed a
motion for a new trial or for a curative instruction. He
cited the government’s objection during his closing argu-
ment and he claimed that the court emphasized the notes
in its remarks to the jury. The court denied the motion, and
after a few more notes to the court (two of which are
discussed in the final section below), the jury convicted
Trout.
On appeal, Trout argues that he was denied a fair trial
by the government’s objection during his closing argu-
ment and that the district court erred in failing to de-
clare a mistrial. This Court evaluates prosecutorial mis-
conduct that does not implicate an enumerated constitu-
tional right to “determine whether [it] deprived the
defendant of a fair trial.” United States v. Cotnam, 88 F.3d
487, 498 (7th Cir. 1996). To make that determination, we
first evaluate the objection in isolation, and if it was
improper, we then examine the objection “in light of the
16 Nos. 05-4616 & 05-4617
entire record to determine if the defendant was deprived
of a fair trial.” Id. We have identified five factors that
are relevant in weighing the prejudice of the prosecutor’s
comments: “1) the nature and seriousness of the prosecuto-
rial misconduct, 2) whether the prosecutor’s state-
ments were invited by impermissible conduct by defense
counsel, 3) whether the trial court instructed the jury to
disregard the statements, 4) whether the defense was
able to counter the improper statements through rebuttal,
and 5) the weight of the evidence against the defendant.”
Id.; United States v. Rodriguez, 63 F.3d 546, 558 (7th Cir.
1995). Trout raised this objection below in the context of
a motion for a new trial, the denial of which we review
for an abuse of discretion. United States v. Humphrey, 34
F.3d 551, 557 (7th Cir. 1994).
The government’s decision to object during the defen-
dant’s closing argument is not unproblematic. Aside from
disrupting the defendant’s final chance to present his case
to the jury, it was largely unnecessary. For a minor objec-
tion, which was the kind made here, the government can
always use its rebuttal to correct any misstatement made by
the defendant or, if the situation demanded, seek a curative
instruction. But regardless whether the objection rose to the
level of improper conduct, which we do not decide, Trout’s
trial was fair. In the first place, although the timing of the
objection was not ideal, the defendant invited the response.
See Darden v. Wainwright, 477 U.S. 168, 181-82 (1986). Both
sides knew that Officer Combes’s notes were inadmissible
hearsay. Nonetheless, Trout’s attorney sought to use the
fact of this inadmissibility to weaken the thrust of the
testimony recounting his client’s confession. In addition,
the prejudice resulting from the objection was minimal.
Trout argues that the objection improperly emphasized
Nos. 05-4616 & 05-4617 17
Officer Combes’s testimony regarding his confession. But
Trout’s closing argument—most notably, the remarks that
precipitated the objection—largely focused on Officer
Combes’s testimony and his notes irrespective of the
government’s objection. And, later in his closing remarks,
Trout’s attorney impugned Officer Combes’s testimony
with the fact that he needed the notes to remember what
had happened. Instead of attempting to lessen the alleged
prejudice arising from the government’s objection, which
Trout’s attorney had an opportunity to do, he continued to
discuss the notes. Accordingly, the incremental weight
placed on the notes by the government’s objection was
slight. Finally, the district court properly instructed the jury
regarding how it must evaluate the evidence through its
supplemental instructions. Although the jury note indi-
cated some confusion regarding the evidence, the court’s
supplemental instructions were a proper statement of
the law regarding the notes. So if the government’s inter-
jection caused any confusion, these instructions would
have cleared it up. Rodriguez, 63 F.3d at 559. As a result,
the government’s objection could not have denied Trout
a fair trial.
2. Improper Commentary on Trout’s Failure to
Testify
Trout also claims that the government impermissibly
commented on his failure to testify during its rebuttal to his
closing argument. During his own closing, Trout’s attorney
made much of the “immense passage of time” between the
December 2000 robbery and the trial. In his estimation, the
“case boils down to . . . this statement that [two police
officers] claim Mr. Trout made.” These officers had “no
memory of what happened” and “simply read . . . what
18 Nos. 05-4616 & 05-4617
happened four and a half years ago.” These “obviously
professional witnesses” could “avoid having their memory
tested.” And Officer Combes, whom Trout’s attorney had
“some more respect for,” could not “remember anything,
zero, zip.” In closing, he remarked that he was “angry that
this man is being put through this for four-and-a-half years
based on a flimsy and completely unsupported claim
that . . . he confessed to this crime,” a confession that was
before the jury based on the “completely evaporated
memories of two police officers.”
During its rebuttal, the government addressed the
statements made by Trout’s attorney:
It should be clear to everyone here now that a very
large part of our case centers on the statement, the
confession, made by Mr. Trout. What I am befuddled
by . . . is whether that statement has ever really been
challenged. I mean, I was confused, I have to admit, by
defense counsel’s concession that Stephan Combes,
the guy who wrote down the notes, who told you
about what . . . Mr. Trout said, . . . is an honest guy.
So in order for . . . us to disregard the confession,
someone will have to have lied. Someone is lying about
what was said by Mr. Trout. But there is really no
challenge to the credibility of the officers. And you
heard Detective Combes testify.
***
Now, on the one hand . . . he is challenging the mem-
ory of the police officers, as that somehow benefits the
government. But think about it. If you have police
officers who are going to lie, who are willing to break
the law, who are going to try to frame someone, as
Nos. 05-4616 & 05-4617 19
what’s being suggested here although not said, then
why admit on the stand, I don’t remember?
***
Now, what we have done is we have distracted you
now from the admissions that were made by Mr. Trout,
which are not being challenged. And that confession,
seals his fate.
Finally, the government concluded by noting that “the
heart of our case rests with the statement.”
Trout argues that these statements indirectly com-
mented on his failure to testify, which, because his attor-
ney did not object in the district court, we review for
plain error. United States v. Sandoval-Gomez, 295 F.3d 757,
762 (7th Cir. 2002). To safeguard the defendant’s Fifth
Amendment right against self-incrimination, the gov-
ernment cannot offer a defendant’s failure to testify as
“substantive evidence of guilt,” whether directly or
indirectly. United States v. Robinson, 485 U.S. 25, 34 (1988);
United States v. Cotnam, 88 F.3d 487, 497 (7th Cir. 1996). In
a criminal trial, there may be times when it is “highly
unlikely that anyone other than the defendant could rebut
the evidence” offered by the government. Freeman v. Lane,
962 F.2d 1252, 1260 (7th Cir. 1992). In these circumstances,
a statement by the government that this evidence went
“uncontradicted” could, as a matter of logic, permit the
jury to draw a negative inference from the defendant’s
failure to testify. Despite these limits, the Fifth Amendment
does not otherwise prevent the government from comment-
ing on the evidence adduced at trial. A “comment on the
‘uncontradicted’ or ‘uncontroverted’ evidence” is not
always reversible error “since the absence of contradiction
has evidentiary value, no matter who the logical person to
20 Nos. 05-4616 & 05-4617
furnish the contradiction.” Kurina v. Thieret, 853 F.2d 1409,
1416 (7th Cir. 1988). To separate the permissible from the
impermissible, this Court looks to the context of the
statements to decide whether (1) it was the prosecutor’s
“manifest intention” to use the defendant’s silence
as evidence of guilt; or (2) “the remark was of such a
character that the jury would ‘naturally and necessarily’ ”
treat it as such. Cotnam, 88 F.3d at 497; Robinson, 485 U.S.
at 33.
Trout cites the prosecution’s use of the phrases “no
challenge” and “not being challenged” as proof that the
government indirectly commented on his decision not to
testify. Trout only confessed to Officers Sofrenovic and
Combes, and thus a statement that their testimony was
“not challenged” would, in his estimation, necessarily
point to his silence. These terms can produce constitu-
tional violations when, “by default,” the only person
capable of “challenging” the government’s claims was a
non-testifying defendant. See Cotnam, 88 F.3d at 497.
But whether the government had the “manifest inten-
tion” to treat the defendant’s silence as evidence of
guilt depends on the context of the statement, not the
government’s use of certain proscribed terms. Robinson,
485 U.S. at 33. In light of the efforts by Trout’s attorney
to discredit Officer Combes in his closing, the govern-
ment’s statements cannot be read as a commentary on
the defendant’s failure to testify. It was instead an attempt
to rehabilitate Officer Combes’s credibility by focusing
on “the accuracy and reasonableness of” his testimony,
which is an entirely proper line of argument. United States
v. Harris, 271 F.3d 690, 700-01 (7th Cir. 2001). In order to
disregard his testimony entirely, the jury would have
needed to conclude that Officer Combes was being less
Nos. 05-4616 & 05-4617 21
than truthful or otherwise not worthy of belief. But, the
government argued, no one had challenged his credibility.
And despite Trout’s attorney’s argument that Officer
Combes’s memory was fuzzy, the government argued
that there was no indication that he had provided bad
information. Given the statements made by Trout’s attor-
ney, it was reasonable for the government to stress
Officer Combes’s credibility in its rebuttal, including an
effort to stress the validity of his testimony. Because the
jury would have seen the government’s statements in this
context, it would not have “naturally and necessarily”
interpreted the government’s argument to be a commen-
tary on the defendant’s silence.
3. District Court’s Treatment of the Final Jury Notes
Finally, Trout argues that the district court improperly
responded to a jury note indicating that the jury could
not reach a verdict. The jury would ultimately send out
four notes. Its third asked the court:
Is it possible to convict on either count while finding
the defendant innocent of the other? In other words,
could we find the defendant guilty on Count 1 but not
guilty on Count 2? Or is it impossible from a legal
perspective to decide he’s not guilty on Count 2 if
we find him guilty on the conspiracy charge?
The court read the note to the parties and solicited re-
sponses. The government argued that a supplemental
instruction was in order and agreed that the jury could
reach different verdicts as to the two counts. Trout’s
attorney also agreed that “the instructions and the ver-
dict forms make[ ] it clear that . . . there can be guilt on
either side.” The court then called the jury in, read the
22 Nos. 05-4616 & 05-4617
jury’s note, and gave an affirmative answer to all three
questions posed in the note before the jury returned to its
deliberations.
Later that afternoon, the jury sent its fourth note, inform-
ing the court that
[H]aving discussed both of the charges and having
tried to reconcile our differences of opinion without
success, we wish to report to you our inability to reach
a unanimous verdict on either count.
The court had provided the jurors an instruction prior
to deliberations—a so-called Silvern instruction—informing
them that they should make every effort to reach a unani-
mous verdict based on their deliberations and their honest
beliefs regarding the facts from trial. After reading the
jury’s note to the parties, the court said that it saw “no
point in repeating the Silvern instruction.” Instead, it
decided to “ask whether there is any juror who has any
opinion that with further deliberation they could reach
a verdict on either count.” The court thought that
“the answer [would] be no,” but wanted to “take that
final step” before discharging the jury. Neither party
objected, and the judge brought in the jury and asked
whether “any juror . . . has any belief that there is any
prospect at all of a verdict on either count with further
deliberation.”
In response, one juror asked whether the court was
“implying that [the jury] could come to a verdict on one
count and then still not” convict on the other. The court
said this would be permissible, and one juror responded
that he’d like to continue deliberating. Another juror
then pointed the judge’s attention to the Pinkerton in-
struction that the court had given to the jury, which said
Nos. 05-4616 & 05-4617 23
that a guilty verdict as to the conspiracy count plus a
finding that the robbery occurred required a conviction
as to the robbery count as well. Nonetheless, the court
told the jury that a guilty verdict as to the conspiracy
count and no verdict as to the robbery count was a possi-
bility because sometimes “juries will reach verdicts that
are apparently inconsistent, and that is permitted.” The
court then sent the jury off to continue deliberating, and the
jury eventually convicted Trout of the conspiracy charge
and acquitted him of the robbery count.
On appeal, Trout raises two challenges to the court’s
treatment of the fourth jury note, both raised for the first
time on appeal and thus reviewed for plain error. United
States v. Miller, 159 F.3d 1106, 1110 (7th Cir. 1998). First,
Trout argues that the district court failed to follow the
proper procedures for responding to the jury’s fourth note.
When a jury sends out a note to the district court, “the
jury’s message should [be] answered in open court and . . .
[the defendant’s] counsel should have . . . an opportunity
to be heard before the trial judge respond[s].” United States
v. Rogers, 422 U.S. 35, 39 (1975). And because the defendant
has a right to be present “at every trial stage,” FED. R. CRIM.
P. 43(a)(2), he must be present during the discussion of
jury notes as well. United States v. Patterson, 23 F.3d 1239,
1254 (7th Cir. 1994). Here, before responding to the jury’s
note, the district court read the note in open court,
which included the defendant, and the court told the
parties that if the jurors indicated that they were dead-
locked, it would discharge them. Trout’s attorney had no
objection to this approach at the time, nor has he chal-
lenged it on appeal. Instead, Trout argues that the dis-
trict court erred in responding to the jury’s follow-up
questions when it was already in the court. In his view,
24 Nos. 05-4616 & 05-4617
the court should have first discussed the individual
juror’s question with the parties outside of the jury’s
earshot before providing an answer.
But Trout has waived this claim because his attorney
had already agreed to the substance of the court’s response
during the discussion of the third jury note. United States v.
Askew, 403 F.3d 496, 505 (7th Cir. 2005). The jury’s third
note asked the court whether it could reach different
verdicts on the two counts. The court discussed this note
with the parties, and Trout’s attorney agreed with the
court’s affirmative answer. The judge then brought the
jury in and so instructed them, without Trout’s attorney
raising any objection. The follow-up discussion following
the court’s question to the jury covered the same ground
as the third note. Accordingly, Trout cannot claim that
he should have been consulted before the court gave the
same answer.
In addition, Trout argues that the district court erred in
the substance of its response to the jury’s note. He claims
that the judge tendered an instruction that did not
comply with this Court’s decision in United States v. Silvern,
484 F.2d 879 (7th Cir. 1973). In Silvern, this Court provided
a model instruction for a district court to give when a
jury is deadlocked. In so many words, the instruction
gently urges the jury to continue deliberating, reminding
each juror to listen to the other jurors and to be open to
the opinion of others without surrendering her honest
beliefs. United States v. Rodriguez, 67 F.3d 1312, 1321 (7th
Cir. 1995). If a district court deviates from the approved
instruction, this Court will reverse if the ultimate instruc-
tion given was “coercive of unanimity.” Id. at 1320. Trout
claims that the district court’s statements to the jury
were just that; the court should have given the Silvern
Nos. 05-4616 & 05-4617 25
instruction rather than tell the jury it could reach dif-
ferent verdicts on the two counts.
But before a court is required to give a Silvern instruction,
the jury must be deadlocked, Miller, 159 F.3d at 1110-11,
and because the jury was not deadlocked in Trout’s case,
no Silvern instruction was required. After the judge
asked the jury whether it was deadlocked and told the
jury they could reach different verdicts on the two counts,
a juror immediately told the judge that “we’d like to talk
about it.” The court then discussed the possible verdicts the
jury could reach after it was clear that the jury was able
to reach a decision or, at a minimum, continue deliberating.
In light of the court’s inquiry, the jury was simply not
deadlocked, and if that’s the case, Silvern is irrelevant.
Accordingly, Trout’s argument that the district court
erred in not reading the Silvern instruction must fail as
well.1
1
We do not decide whether it was proper for the district court
to tell the jury that it could reach legally inconsistent verdicts.
Trout has not specifically challenged this instruction on appeal,
though he pointed to the district court’s statements on the
matter as being more “coercive of unanimity” for purposes of
his Silvern argument. This claim fails both because, as dis-
cussed, the jury was not deadlocked and, having agreed to this
supplemental instruction following the third note, Trout has
waived the claim. This Court’s reluctance to allow a defendant
to make nullification arguments to the jury would suggest
that an instruction permitting inconsistent verdicts would
seldom, if ever, be warranted. See, e.g., United States v. Anderson,
716 F.2d 446, 449 (7th Cir. 1983). But because the issue is not
directly before us, we express no opinion on the matter.
26 Nos. 05-4616 & 05-4617
III. Conclusion
For the foregoing reasons, we AFFIRM both Willis’s and
Trout’s convictions, but VACATE Willis’s sentence and
REMAND for resentencing.
USCA-02-C-0072—4-23-08