United States v. Shawn Dillard

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 10-2249
_______________
UNITED STATES OF AMERICA
v.
SHAWN DILLARD,
Appellant
_______________
On Appeal from the United States District Court
For the Middle District of Pennsylvania
(D.C. Criminal Action No. 1-08-cr-00270-001)
District Judge: Honorable Yvette Kane
_______________
Submitted Under Third Circuit LAR 34.1(a)
June 23, 2011
_______________
Before: BARRY, AMBRO, and VAN ANTWERPEN, Circuit Judges
(Opinion filed: June 23, 2011)
_______________
OPINION
_______________
AMBRO, Circuit Judge
Shawn Dillard was indicted for participating in prostitution and various related
activities. At his trial, the Government briefly and unintentionally displayed a reference
to the fact that Dillard had taken a polygraph examination. The District Court denied
Dillard’s motion for a mistrial. Dillard appeals. We affirm.
I.
As we write solely for the parties, we recite only those facts necessary to our
decision. Dillard was a trooper for the Pennsylvania State Police. One of his duties as a
trooper was to conduct anti-prostitution patrols. During the course of these patrols,
Dillard took part in prostitution by, among other things, demanding sexual favors and
money from women he detained and arrested. He also informed prostitutes and pimps of
undercover operations and law enforcement activities.
In March 2009 Dillard was charged with multiple counts: conspiring to impede
the due administration of justice and to promote interstate prostitution in violation of 18
U.S.C. § 371 (Count One); impeding the due administration of justice in violation of 18
U.S.C. § 1503 (Count Two); aiding and abetting interstate prostitution in violation of 18
U.S.C. §§ 1952(a)(3) (Count Three); Hobbs Act extortion in violation of 18 U.S.C.
§ 1951(a) (Counts Four through Seven); and making false statements to law enforcement
officials in violation of 18 U.S.C. § 1001 (Counts Eight and Nine).
Dillard was tried in May 2009. During the Government’s closing argument, the
prosecutor displayed two inconsistent statements made by Dillard regarding his sexual
involvement with a particular woman. The prosecutor pulled up the first statement, with
the pertinent language (“I did not have sex with her”) highlighted in bright yellow. But,
because a portion of the statement was cut off by the monitor, the prosecutor cropped and
displayed only the relevant language, which was then read to the jury. The prosecutor
2
did the same with the second statement, pulling up the complete document (which
contained the highlighted words “I did have sex with her”), and then cropping the
relevant portion. The defense objected and moved for a mistrial because the second full
statement contained a reference to Dillard’s “polygraph examination” in the first
paragraph. The District Court denied the motion. The jury convicted Dillard of Counts
Two, Three, Eight, and Nine, and acquitted him of Counts One, Four, Five, Six, and
Seven.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. We review a district court’s denial of a motion for a mistrial for
an abuse of discretion. United States v. Hakim, 344 F.3d 324, 328 (3d Cir. 2003) (citing
United States v. Weaver, 267 F.3d 231, 245 (3d Cir. 2001)).
On appeal, Dillard argues that the District Court abused its discretion by denying
his motion for a mistrial because the Government’s “publishing” of the second statement,
containing an inadmissible reference to Dillard’s polygraph examination, “severely
damaged [his] testimony, which was the cornerstone of his defense, and effectively
deprived him of his right to a fair trial.” Dillard Br. 15. We disagree.
First, the facts belie Dillard’s argument. As Chief Judge Kane stated when
denying the motion for a mistrial, it was unlikely that members of the jury even saw the
problematic phrase, as she was unable to read the document from where she sat. The
words were only on the screen for a few seconds, were not emphasized in any way, and
3
the relevant highlighted portion later cropped by the prosecutor was at the bottom of the
page, far removed from the offending reference in the first paragraph.
In any event, even if the jury did see the phrase, the error was harmless. As the
Government points out, “the evidence of [Dillard’s] guilt was overwhelming, consisting
of eyewitness testimony of law enforcement officers, intercepted telephone
conversations, the testimony of victims, telephone records[,] and Dillard’s own admission
of sexual involvement with women he had arrested for prostitution.” Government Br. 19-
20.
Second, the two cases Dillard cites in support of his argument are distinguishable.
In United States v. Murray, 784 F.2d 188 (6th Cir. 1986), an FBI agent testified that the
defendant had been required to take a polygraph examination. Id. at 188. The Court in
that case found that the disclosure was deliberate and the proof of guilt was not sufficient
to hold that the error was harmless beyond a reasonable doubt. Id. at 188-89. The Court
also concluded that an erroneous jury instruction—that the Government was not required
to prove guilt beyond a reasonable doubt—required reversal. Id. None of that is true of
this case, in which disclosure was fleeting and accidental, proof of guilt was
overwhelming, and there were no independent grounds for a mistrial.
Similarly, in United States v. Brevard, 739 F.2d 180 (4th Cir. 1984), an FBI agent
testified that he questioned the defendant’s alibi and had asked him to take a polygraph
examination. Id. at 181. After the trial judge struck the testimony and instructed the
prosecutor to avoid any further reference to the polygraph, the FBI agent mentioned it
again during cross-examination. Id. at 181-82. The District Court gave an instruction to
4
the jury to disregard any reference to the polygraph and allowed the trial to proceed. Id.
at 182. On appeal, the Fourth Circuit Court reversed, holding that the defendant’s alibi
defense made critical the issue of his credibility and that the jury could have inferred that
the defendant failed the polygraph because he was not indicted until after he took the
examination. Id. at 182-83. Again, this is not true of our case, in which the evidence of
Dillard’s guilt was overwhelming and did not turn on his testimony, and the context was
not such that we could conclude that the jury could have made negative inferences about
the results of the polygraph from the display of the second statement.
* * * * *
For these reasons, we affirm.
5