FILED
United States Court of Appeals
Tenth Circuit
January 29, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-1449
JOHNSON KENNETH TAYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 05-cr-00103-JAP)
Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with her on the briefs), Denver, Colorado, for Defendant-
Appellant.
Andrew A. Vogt, Assistant United States Attorney (Troy A. Eid, United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
Before BRISCOE, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
GORSUCH, Circuit Judge.
GORSUCH, Circuit Judge.
During opening statements at Johnson Kenneth Taylor’s trial arising out of
a fight that he initiated on the Southern Ute Indian Reservation, the prosecutor
urged the jury to convict Mr. Taylor in order to “end the cycle of violence” on the
reservation. Mr. Taylor objected to this remark and the district court promptly
issued a curative instruction. Mr. Taylor did not voice any concerns about the
content or sufficiency of the instruction or any lingering prejudice. Accordingly,
the trial proceeded and, after three days, resulted in Mr. Taylor’s conviction. Mr.
Taylor now contends for the first time on appeal that the prosecutor’s remark was
insufficiently addressed by the district court’s instruction.
There is no question that the prosecutor’s remark was inappropriate. The
jury’s role in a criminal trial is to find facts related to the defendant’s innocence
or guilt, a function in which prosecutorial appeals to the resolution of social ills
play no useful role. Nevertheless, because Mr. Taylor expressed no
dissatisfaction with the ameliorative course adopted by the district court, we are
able to review the district court’s failure to issue either a mistrial or further
corrective instruction sua sponte only for the presence of plain error. Discerning
none, we affirm.
I
Viewing the facts in the light most favorable to the jury’s verdict, as we
must, this case arose from a fight at an outdoor party. Following a tribal
powwow, Mr. Taylor, the victim Justin Boyd, and several others went to a bar in
Ignacio, Colorado where they drank heavily and used cocaine. When the bar
closed, the group drove to a remote location on the reservation to continue the
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party, stopping on the way to pick up more alcohol. Roughly 200 people
attended. At some point during the party, Mr. Taylor’s ex-wife, Raylene
Echohawk, became distraught and told Mr. Taylor that a man had made lewd
comments to her and groped her. Ms. Echohawk then saw Mr. Boyd and
indicated that he was the man in question. Mr. Taylor ran over to the car in
which Mr. Boyd was sitting in the front passenger side seat. Mr. Taylor
approached the side of the car and, through an open window, struck Mr. Boyd
twice on the right side of his face. Mr. Taylor then opened the car door and
dragged Mr. Boyd from the vehicle.
Mr. Boyd testified at trial that he subsequently ended up on the ground on
his hands and knees, where he was repeatedly kicked in the face and ribs by
multiple people. Mr. Boyd lost consciousness during the beating, and was
dragged 50 yards from the car. He was left semi-conscious in nearby bushes and
his wallet, cell phone, belt, and cocaine were stolen. The next morning, a
bloodied Mr. Boyd regained consciousness and managed to walk 20 minutes to a
house where he sought assistance for his injuries. He was taken to a hospital, and
several days later had plastic surgery to repair a shattered orbital bone around his
left eye. His lip and nose were scarred, and he continues to suffer from double
vision and “flashes.”
On March 10, 2005, a federal grand jury indicted Mr. Taylor on one count
of assault resulting in serious bodily injury, or aiding and abetting such an
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assault, in violation of 18 U.S.C. §§ 2, 113(a)(6), and 1153. After three days of
testimony and deliberations, the jury found Mr. Taylor guilty as charged.
During opening statements at trial, the prosecutor made the following
remark:
You have to kind of put yourself in the shoes of those living on the
Southern Ute Reservation and look at it through their eyes and get past
the alcohol and the cocaine, not that it doesn’t happen here every day
with our families and friends. That’s the reality of the reservation.
This case is about asking you, the jury, to tell Johnson Taylor that
he had no justifiable sufficient legal right to sucker punch Justin Boyd,
to scar him permanently, and to end the cycle of violence out there.
Trial Tr. at 161. Defense counsel immediately objected that the remark was
“inappropriate.” Id. The court responded by admonishing the jury to “remember
that what the lawyers tell you is not evidence, and the evidence in the case is
what you must decide.” Id. at 161-162. Defense counsel did not object to the
content of the court’s instruction, move for further instructions, move for a
mistrial, or otherwise register any dissatisfaction with the court’s curative course.
After entry of judgment, Mr. Taylor appealed his conviction arguing for the
first time that the district court’s instruction was insufficient to cure the prejudice
created by the prosecutor’s remark and that a new trial is necessary.
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II
A criminal trial is about the innocence or guilt of the individual defendant
as measured against the statutory elements devised by Congress. Comments
suggesting to the jury that a guilty verdict may be proper for reasons outside of
the four corners of the statute run the risk of erroneous convictions. Appeals
about the need to address societal ills speak not to the question whether the
accused committed the crime alleged, but divert attention from that dispositive
question and confuse the task of the jury – as finder of fact – with the task of
elected officials – as the authors of social policy. Our sister circuit captured our
concern when it explained that “[t]he amelioration of society’s woes is far too
heavy a burden for the individual defendant to bear.” United States v. Monaghan,
741 F.2d 1434, 1441 (D.C. Cir. 1984).
On appeal, the impropriety of the prosecutor’s remark is common ground.
Throughout its oral presentation, the government conceded that the comment had
no proper place at trial. The remaining disputed question before us is, thus,
whether the district court’s curative instruction, not objected to by defense
counsel, sufficed to address the prejudice suffered by the defendant. In
confronting that question, we must first resolve an antecedent question concerning
the appropriate standard of review.
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A
Where the defendant contemporaneously moves for a mistrial on the basis
of prosecutorial misconduct, we review the denial of such a motion for abuse of
discretion. United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996). By
contrast, in cases of prosecutorial misconduct in which the defendant makes no
objection, our precedent limits us to plain error review. See, e.g., United States v.
Hall, 473 F.3d 1295, 1305 (10th Cir. 2007); United States v. Russell, 109 F.3d
1503, 1514 (10th Cir. 1997). The case before us falls somewhere between these
two extremes: on the one hand, Mr. Taylor did lodge a contemporaneous
objection to the prosecutor’s remark but, on the other hand, he did not move for a
mistrial and the court rapidly responded with a curative instruction to which
counsel issued no complaint.
We think that the rationales for applying plain error review apply here, and
that standard of review ought to control. The district court issued a curative
instruction in response to Mr. Taylor’s objection, effectively agreeing with Mr.
Taylor that the challenged action was, in fact, prosecutorial misconduct. Because
it sided with him, Mr. Taylor cannot fairly be said to be appealing the district
court’s ruling on his objection. See United States v. Inglese, 282 F.3d 528, 538-
39 (7th Cir. 2002) (“Even if the government’s comment was improper, because
[the defendants] received the relief that they requested, there is no adverse ruling
about which they can complain.”). Instead, Mr. Taylor’s complaint can more
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accurately be said to pertain to the adequacy of the district court’s curative
actions. That is, the gravamen of Mr. Taylor’s appeal is that, even after the
district court’s instructions to the jury, there remained a modicum of uncured
prejudice sufficient to imperil his right to a fair trial. Mr. Taylor did not,
however, alert the district court to his belief on this score. He neither advanced a
contemporaneous objection to the district court’s curative instruction, nor moved
for a mistrial. Such actions, which would have given the district court the
information necessary to evaluate the need for further curative steps, would have
properly preserved the claim of error for appeal. Instead, for all that the district
court knew, it had addressed Mr. Taylor’s complaint to his satisfaction; it had no
reason to believe any further issue or concern remained. Where this happens –
where a party seeks on appeal to raise an issue not squarely presented to the
district court in order to allow it to exercise its judgment in the first instance – we
traditionally review only for plain error.
The rationale for this rule stems from concerns of fairness, an appreciation
of the benefits of adversarial process, and the promotion of effective appellate
review. If failing to object does not yield a more deferential standard of review
than when an objection is interposed, savvy litigants, after having protested
opposing counsel’s remarks, would be encouraged by our legal rules to remain
mum about any problems they see lurking in a district court’s proffered curative
instructions and raise those concerns only on appeal. Such a rule would thus
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effectively invite litigants to sandbag opponents and the district court and afford
them no opportunity to address and correct, if possible, any alleged deficiency in
the court’s curative actions. 1 Such a rule would likewise tend to hamper our
appellate review. Distant from trial, we are not well-suited to assess the impact
of remarks like the one at issue here – one-sentence in an opening statement –
without the benefit of the parties’ and district court’s contemporary analysis and
assessment. As we have explained many times before, jury prejudice is “a highly
fact-based, circumstances-dependent [issue], which the district court is far better
positioned to consider than we” given its close vantage to the fray. United States
v. Jones, 468 F.3d 704, 710 (10th Cir. 2006).
Our application of plain error review comports with our past practice in
analogous situations. For example, in United States v. Gonzalez-Montoya, 161
F.3d 643, 650 (10th Cir. 1998), defense counsel objected to a prosecutor’s
discussion of the “deliberate ignorance” standard, but did not object again to the
prosecutor’s subsequent misstatement of the law on deliberate ignorance; we held
that the proper scope of review of the prosecutor’s subsequent, unobjected-to
1
Our concurring colleague notes that mistrial motions are already
plentiful. Concurrence at 3 n.1. Such motions, affording as they do the district
court notice of a potential problem and the opportunity to exercise its discretion
to cure it, are reviewed in our circuit for an abuse of discretion. Meanwhile, Mr.
Taylor asks us to grant more expansive de novo review where a litigant does not
move for a mistrial but merely objects and then remains quiet about a lurking
problem in the district court’s responsive curative instruction. We fail to see why
smart litigants, who quite rightly conform their conduct to legal rules, would not
seek to take advantage of such an inexplicable disparity in our legal regime.
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statement was for plain error only. Similarly, it seems to us, an initial objection
to prosecutorial misconduct is insufficient to preserve a claim of prejudicial error
to a district court’s subsequent curative instruction. In both cases, a supervening
event has occurred and it is that supervening event the appellant seeks to
challenge on appeal.
Our holding today also mirrors those of several of our sister circuits who
have already confronted the question we do today. See United States v. Griffin,
437 F.3d 767, 769-770 (8th Cir. 2006) (“[I]n this case, the district court sustained
[the defendant]’s objection and gave a cautionary instruction to the jury. [The
defendant] neither moved for a mistrial nor objected to the adequacy of that
instruction. Therefore, the claim of error was not preserved.”); United States v.
Hakim, 344 F.3d 324, 328 (3d Cir. 2003) (holding that where defense counsel did
not object to the sufficiency of the curative instruction, the court reviewed the
content of the curative instruction only for plain error); United States v. Canales,
744 F.2d 413, 431 (5th Cir. 1984) (applying plain error review to claims of
prosecutorial misconduct that were the subject of curative instructions not
objected to at trial).
B
Mr. Taylor argues that United States v. Pulido-Jacobo, 377 F.3d 1124,
1134 (10th Cir. 2004) dictates application of a de novo standard of review. In
fact, however, Pulido-Jacobo indicates that we will review claims of
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prosecutorial misconduct de novo only in situations in which a contemporaneous
objection to prosecutorial misconduct has been entered and overruled. See id. at
1133-34; see also Duckett v. Mullin, 306 F.3d 982, 988-91 (10th Cir. 2002).
That, of course, is not this case as Mr. Taylor’s objection was hardly overruled.
Neither is the distinction merely a formal one. When a defendant’s
objection to prosecutorial misconduct has been overruled, the defendant has put
the district court on notice that he believes that there is an issue of uncured
prejudice, and the district court simply disagrees. Having objected, there is little
else that a defendant can do to ensure the fairness of his trial and preserve his or
her issue for appeal. By contrast, in our case the district court agreed with the
defendant’s objection and thought it had fully addressed it; the defendant did
nothing to raise and share his apparent lingering concerns and we have no
indication that, if asked, the district court would have declined the opportunity to
take further corrective action. 2
Mr. Taylor responds that he is entitled to de novo review because his
objection was effectively overruled, or at least was not ruled on. In this vein, Mr.
2
Our case law requiring de novo review of the decision to overrule an
objection to misconduct is admittedly at odds with holdings of most of our sister
circuits who review the decision to overrule an objection on the grounds of
prosecutorial misconduct for abuse of discretion. See Griffin, 437 F.3d at 769;
United States v. Mitchell, 502 F.3d 931, 970 (9th Cir. 2007); United States v.
Simpson, 479 F.3d 492, 503 (7th Cir. 2007); United States v. Lore, 430 F.3d 190,
210 (3d Cir. 2005). But see United States v. Roach, 502 F.3d 425, 432-33 (6th
Cir. 2007). Because Mr. Taylor’s objection was sustained, however, we have no
need or occasion to address this issue.
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Taylor makes much of the fact that the district court did not utter the word
“sustained.” But in response to Mr. Taylor’s objection the court interrupted the
prosecutor’s opening statement and immediately issued a curative instruction;
under such circumstances we cannot help but conclude that the objection was
sustained, both legally and effectively in the eye of the jury. See Shank v. Naes,
773 F.2d 1121, 1127 (10th Cir. 1985) (“Thus, plaintiff-appellant’s objection was
sustained by the court advising the jury there was no such evidence.”). Indeed, a
court’s instruction to the jury that it must disregard a lawyer’s statement arguably
does considerably more damage to that attorney’s credibility in the jury’s
estimation than would the bare utterance of the word “sustained.”
Our respected colleague in concurrence would reject this distinction
between overruled and sustained objections, advancing two arguments in support
of this proposition. First, the concurrence suggests that we have “allowed the
government – rather than Defendant – to frame the issue Defendant has
appealed.” Concurrence at 4 n.2. But the question presented by both parties is
whether any prejudice created by the prosecutorial misconduct in this case
warrants reversal. Mr. Taylor asks us to answer this question in the affirmative.
In its brief, the government asks us to answer this question in the negative, and
does so expressly arguing that, because the district court exercised its discretion
to give a curative instruction, Mr. Taylor was required to object further to
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preserve his claim of prejudicial error. See Gov’t Brief at 4-10. 3 Confronted with
this argument, in his reply brief Mr. Taylor asks that we make clear the “plain-
error standard does not apply.” Reply Brief at 2-4. We are, of course, required to
consider any argument properly presented by a party for affirming the district
court’s judgment, see, e.g., United States v. White, 326 F.3d 1135, 1138 (10th Cir.
2003), and there can be no question that the parties fully joined issue on the
question of our standard of review both in their briefing and at oral argument.
The concurrence seems to suggest that we should ignore the curative
instruction merely because Mr. Taylor did not raise it in his opening brief.
Concurrence at 1. But to do so would allow the appellant to control the standard
of review on appeal merely by omitting record facts from its brief. For example,
as we and the concurrence agree, we review misconduct claims that are the
subject of an overruled objection de novo, Pulido-Jacobo, 377 F.3d at 1134,
unless there is a subsequent motion for a mistrial, in which case we review for an
abuse of discretion, Gabaldon, 91 F.3d at 94. As we read the concurrence’s
approach, an appellant whose objection was overruled and who subsequently
3
To pluck just one example from the government’s brief: “Had Defendant
moved for a mistrial or a new trial or otherwise requested the trial court to take
corrective action beyond the curative instruction . . . , the district court would
have been able to exercise its discretion to further address the alleged error, and
this Court would have been in a position to review the decision of the district
court under the applicable abuse-of-discretion standard.” Gov’t Brief at 9. The
concurrence itself concedes that the government argued that plain error review
applied because Mr. Taylor neither moved for a mistrial nor objected to the
sufficiency of the curative instruction. Concurrence at 4 n.2.
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moved for a mistrial could simply omit reference to the mistrial motion in its
opening brief (thereby framing the issue in terms of his objection rather than the
mistrial motion) and receive de novo review. We decline to curtail the adversarial
process in this fashion.
Second, the concurrence suggests that a de novo standard of review is
compelled by Gabaldon, United States v. Meienberg, 263 F.3d 1177, 1179-80
(10th Cir. 2001), United States v. Oberle, 136 F.3d 1414, 1421 (10th Cir. 1998),
and United States v. Lonedog, 929 F.2d 568, 572-74 (10th Cir. 1991). However,
none of these cases answered the question before us today: whether a litigant
who has received all the relief he requested, in the form of a sustained objection
and a curative instruction, should nonetheless be entitled to de novo review of the
effects of any lingering prejudice.
In Gabaldon, we held only that an abuse of discretion standard of review
applies where there is a contemporaneous objection and motion for a mistrial. To
be sure, in dicta we said that in the absence of a mistrial motion, the appropriate
standard of review would be de novo. Gabaldon, 91 F.3d at 94. But this
statement, aside from its lack of precedential value, also is contrary to our
precedent to the extent it suggests that we review de novo, rather than for plain
error, cases in which there has been neither a mistrial motion nor a
contemporaneous objection, a point the concurrence acknowledges. See Hall, 473
F.3d 1295; Concurrence at 4. Oberle applied de novo review to an objected-to
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instance of misconduct, but, as the concurrence acknowledges, there is no
indication that the district court subsequently offered a curative instruction.
Concurrence at 6. Unlike Gabaldon and Oberle, Meienberg and Lonedog did
involve sustained objections to prosecutorial misconduct that were not the subject
of further objection or a mistrial motion. Unlike here, however, the parties did
not apparently dispute the applicable standard of review, and, in any event, the
court simply did not pass on the issue. While the concurrence asserts that
because the court in Meienberg adopted the inquiry discussed in Gabaldon’s
dicta, it necessarily adopted the standard of review, Concurrence at 5, Meienberg
nowhere discusses a standard of review for misconduct, de novo or otherwise.
We take our duty to follow precedent very seriously, but there simply is no
prior decision on point in our court addressing the applicable standard of review
in the circumstances now before us. “Questions which merely lurk in the record,
neither brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedents.” United Food
& Commercial Workers Union, Local 1564, 207 F.3d 1193, 1199 (10th Cir. 2000)
(quoting Webster v. Fall, 266 U.S. 507 (1925)); see also Brecht v. Abrahamson,
507 U.S. 619, 630-631 (1993); United States v. Romero, 491 F.3d 1173, 1177
(10th Cir. 2007). Accordingly, there is no impediment to our decision today, one
bringing our case law in this arena into better harmony with our holding in
Gonzalez-Montoya and the views of our sister circuits.
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III
With the applicable standard of review sorted, we must now turn to decide
whether the district court’s failure sua sponte to grant a mistrial or issue some
further curative instructions was plain error. Plain error occurs when there is
(1) error, (2) that is plain, which (3) affects the defendant’s substantial rights, and
which (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.
2007). In this case, we barely get out of the gate, finding no error that can
reasonably be described as plain.
A
The Supreme Court has explained that error is plain when it is “clear” or
“obvious.” United States v. Olano, 507 U.S. 725, 734 (1993). In turn, to be clear
or obvious, the error must be contrary to well-settled law. United States v. Smith,
413 F.3d 1253, 1274 (10th Cir. 2005). Mr. Taylor points us to no authority for
the proposition that the district court was clearly obliged under the circumstances
to grant a mistrial sua sponte in response to a remark already the subject of a
curative instruction. Indeed, the weight of authority seems to rest heavily against
him. See, e.g., United States v. Devous, 764 F.2d 1349, 1356 (10th Cir. 1985)
(holding that where the prosecutor made improper remarks during closing
arguments and a curative instruction was given, it was not plain error not to grant
a mistrial sua sponte); United States v. Malik, 2007 WL 2153560, at *2-3 (3d Cir.
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July 27, 2007) (holding that failing to grant a mistrial sua sponte following the
prosecution’s references to the defendant as “the Muslim guy” was not plain error
where the defense had objected and the prosecution had been instructed to refer to
the defendant by name); United States v. Norris, 780 F.2d 1207, 1212 (5th Cir.
1986) (holding that where the jury was instructed to disregard inadmissible
testimony that it was not plain error not to order a mistrial sua sponte).
Neither is any error made clear or obvious when the specific circumstances
of this case are considered. The prosecutor’s comment came during opening
statements, was not referred to again at any point during the three day trial, and
the government did not attempt to press any improper insinuation to its advantage
later in the trial. See United States v. Novak, 918 F.2d 107, 111 (10th Cir. 1990)
(distinguishing improper prejudicial remarks made in opening statements that are
isolated from those that the government attempts to substantiate and press to its
advantage during the trial). Further, of course, the district court instructed the
jury that the prosecutor’s comment was not to be considered evidence; we
generally presume that juries follow courts’ instructions, see Abuan v. Level 3
Commc’ns, Inc., 353 F.3d 1158, 1175 (10th Cir. 2003); and Mr. Taylor points us
to nothing in the record suggesting that the jury failed to do so in this case.
B
Mr. Taylor responds that the problem is not whether the jury followed the
court’s instructions, but whether the instructions themselves addressed the correct
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source of prejudice. That is, Mr. Taylor does not worry that the jury might have
considered the prosecutor’s remark to be evidence; his concern is instead that the
jury might have heeded the prosecutor’s call to use Mr. Taylor’s trial as a vehicle
to correct a broad social problem. In effect, Mr. Taylor argues, the prosecutor
confused the jury about its role, not about evidentiary issues.
To be sure, Mr. Taylor could have raised this concern at trial, and had he
done so we would be reviewing this matter in a very different posture. But,
given that Mr. Taylor presses this point for the first time only on appeal, we can
ask only whether the district court’s failure to anticipate it was clearly wrong. It
was not. District judges are not obliged to guess at a litigant’s theory or
anticipate its future arguments on appeal. Besides, the instruction the district
court offered was reasonably tailored to Mr. Taylor’s articulated concern. The
jury’s duty to consider only the evidence before it and its proper role in assessing
guilt or innocence are, after all, closely intertwined. As the Supreme Court has
said, “the jury’s constitutional responsibility is not merely to determine the facts,
but to apply the law to those facts and draw the ultimate conclusion of guilt or
innocence.” United States v. Gaudin, 515 U.S. 506, 514 (1995). Instructions that
properly describe what constitutes evidence are directly aimed at helping the jury
reach “the ultimate conclusion of guilt or innocence.” They do so by delimiting
the universe of possible facts to which the jury may apply the law in reaching its
verdict. Here, the district court properly instructed the members of the jury at the
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outset of the trial that, in determining guilt or innocence, they were only to
consider evidence. The court also forewarned the jury that the attorneys’ opening
statements should not be considered as evidence. Following the remark in
controversy, the district court reiterated and underscored that the prosecutor’s
remark was not to be taken as evidence, and thus, was not the basis for assigning
guilt or innocence. The district court’s course was therefore reasonably designed
to address Mr. Taylor’s concern and we cannot say its failure, on its own motion,
to offer a more fulsome instruction rose to the level of plain error.
* * *
The judgment of the district court is
Affirmed.
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06-1449, United States v. Johnson Kenneth Taylor
BRISCOE, Circuit Judge, concurring:
I, too, would affirm the conviction of Defendant Johnson Kenneth Taylor
(“Defendant”). I write separately, however, because I would apply a different
standard of review to Defendant’s prosecutorial misconduct claims.
The appropriate standard of review
I perceive our differences regarding the appropriate standard of review
arise from our different reading of the issue presented on appeal. The majority
identifies the issue raised by Defendant as follows: “Mr. Taylor now contends for
the first time on appeal that the prosecutor’s remark was insufficiently addressed
by the district court’s instruction.” Majority Op. at 2. However, this issue does
not appear in Defendant’s opening appellate brief, which contains only three
pages of argument. In fact, no mention is made of the district court’s curative
instruction—or even the word “instruction.” Instead, Defendant challenges the
prosecutor’s alleged misconduct and frames the issue as whether “the
government’s appeal to the jury to ‘end the cycle of violence’ on the Southern Ute
Indian reservation, by convicting Mr. Taylor as charged, [was] improper and
prejudicial so as to require reversal of Mr. Taylor’s conviction[.]” Aplt’s
Opening Br. at 1. 1
1
The majority mischaracterizes my argument here as allowing “an
appellant whose objection was overruled and who subsequently moved for a
mistrial [to] simply omit reference to the mistrial motion in its opening brief . . .
(continued...)
We have outlined the standard for appellate review of prosecutorial
misconduct claims where the defendant did not move for a mistrial before the
district court:
Where there has been no motion for a mistrial or new trial, the
district court has not exercised its discretion, and therefore it is
meaningless to look for an abuse of discretion. In such cases, we
merely review whether the conduct objected to was indeed improper.
Whether prosecutorial misconduct occurred is a mixed question of
law and fact, which we review de novo. If we conclude that the
conduct was improper, we then evaluate whether it warrants reversal.
We make this evaluation as follows:
“A prosecutor’s improper statement to the jury is harmless unless
there is reason to believe that it influenced the jury’s verdict. In
assessing whether the misconduct had such an impact, we consider
the trial as a whole, including the curative acts of the district court,
the extent of the misconduct, and the role of the misconduct within
the case . . . [T]o warrant reversal, the misconduct must have been
flagrant enough to influence the jury to convict on grounds other than
the evidence presented.”
United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996) (citing and quoting
United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996)) (alterations in
original); see also United States v. Caballero, 277 F.3d 1235, 1242 (10th Cir.
2002) (“[A]n allegation of prosecutorial misconduct for which there was a
1
(...continued)
and receive de novo review.” Majority Op. at 12-13. The majority is incorrect.
My argument here simply points out that (1) once we know the facts of the case,
and (2) precedent provides us with the standard of review (as is the case here), we
should not shirk our obligation to follow precedent by allowing the appellee to re-
frame the issue that the appellant has raised. See infra.
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contemporaneous objection presents a mixed question of fact and law that we
review de novo.”).
Contrary to the majority’s contention, our prosecutorial misconduct
standard does not vary depending upon whether the district court sustained or
overruled the defendant’s objection, or whether the defendant objected to the
district court’s curative instructions. Compare United States v. Meienberg, 263
F.3d 1177, 1179-80 (10th Cir. 2001) (applying the Gabaldon standard where the
prosecutor made an improper closing argument, the defendant objected, the
district court sustained the objection, and the defendant “did not request a mistrial
or seek any further relief”), and United States v. Lonedog, 929 F.2d 568, 572-74
(10th Cir. 1991) (applying the same prosecutorial misconduct standard, pre-
Gabaldon, where “Lonedog preserved [his claims] by properly objecting,” the
objection “was sustained and the question was never answered,” and “Lonedog
did not move for a mistrial” or “even request a curative instruction”), with United
States v. Pulido-Jacobo, 377 F.3d 1124, 1134 (10th Cir. 2004) (applying the same
standard where the defendant objected to improper questioning and the district
court overruled the objection), United States v. Toles, 297 F.3d 959, 971-72 (10th
Cir. 2002) (applying the same standard where the defendant objected to an
improper closing argument and the district court overruled the objection), and
Ivy, 83 F.3d at 1287-88 (same). To be sure, if Defendant had moved for a
mistrial, the district court had denied the motion, and Defendant were appealing
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the denial of the motion, we would then review the district court’s decision for an
abuse of discretion. See United States v. Harlow, 444 F.3d 1255, 1265-67 (10th
Cir. 2006); Gabaldon, 91 F.3d at 93-94. 2 In the instant case, though, where the
district court has not exercised its discretion and Defendant is not challenging any
decision of the district court, our focus is solely on the prosecutor’s alleged
misconduct, and we review the alleged misconduct de novo, addressing its effect
on the trial as a whole.
The majority creates unnecessary confusion by re-framing the issue which
Defendant has set out in his brief to focus on the district court’s curative
instructions and failure to declare a mistrial sua sponte. 3 The majority then
2
The majority is correct that this affords a criminal defendant a
comparatively broad scope of review if he or she does not move for a mistrial or
new trial, but our precedent is clear that this is the rule. See Meienberg, 263 F.3d
at 1179-80; Gabaldon, 91 F.3d at 93-94. Moreover, given the number of
defendants who move for mistrials based on allegations of prosecutorial
misconduct, this rule has hardly “invite[d] litigants to sandbag opponents and the
district court,” as the majority contends. Majority Op. at 7. The majority’s
explication of the horrors that will result from following our current rule,
Majority Op. at 8 n.1, greatly overstates the effect of our rule on the incentives of
the litigants.
3
The majority has allowed the government—rather than Defendant—to
frame the issue Defendant has appealed. The government states the issue as
follows:
Whether the failure of the district court to declare a mistrial, sua
sponte, following Defendant’s objection to an eight-word statement
made by the prosecutor during the government’s opening statement
to the jury, where Defendant neither moved for a mistrial nor
objected to the sufficiency of a curative instruction given by the
(continued...)
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purports to solve this confusion by applying the plain error standard. Our
precedent, however, demonstrates that we only review prosecutorial misconduct
claims for plain error where a defendant failed to object at trial to the alleged
misconduct. See, e.g, United States v. Oberle, 136 F.3d 1414, 1421 (10th Cir.
1998) (reviewing one allegedly inappropriate comment under a de novo standard
where defense counsel objected at trial, but then applying a plain error standard
where “defense counsel did not object to the remaining comments”).
The majority’s decision also deviates from our usual analysis of a district
court’s curative instructions. Ordinarily, in considering prosecutorial misconduct
claims, we analyze curative instructions when determining whether the alleged
prosecutorial misconduct “influenced the jury’s verdict” and “warrants reversal.”
Gabaldon, 91 F.3d at 94. The majority, though, suggests that these same curative
instructions now preclude any review of prosecutorial misconduct claims—except
for plain error—unless a defendant has objected both to the prosecutorial
misconduct and to the curative instructions (or moved for a mistrial). This is
inconsistent with our precedent. We address curative instructions as part of our
harmless error review, rather than as automatically precluding such review in the
first place. See id.
3
(...continued)
court, constitutes plain error which should be noticed by this Court.
Aplee. Br. at 1.
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The majority’s attempts to distinguish our precedent are unpersuasive.
Even assuming that our language in Gabaldon is dicta, we explicitly adopted the
Gabaldon standard as part of our holding in Meienberg, and we reviewed the
prosecutorial misconduct claim de novo, using the exact method of analysis that
we had suggested in Gabaldon. Meienberg, 263 F.3d at 1180. The detail of the
Meienberg court’s analysis in adopting and applying this standard, moreover,
refutes any suggestion that “the court simply did not pass on the issue,” as the
majority suggests. Majority Op. at 14. Further, in Oberle, we analyzed several
instances of alleged prosecutorial misconduct and determined that plain error only
applied to those instances where defense counsel did not object to the
prosecutor’s comments:
Defense counsel objected to only one of the challenged comments,
one in which the prosecutor stated that Oberle tried to get Jensen a
“Fifth Amendment plea arrangement, showing some wherewithal,
some knowledge of the criminal system, I would say.” This
comment is reviewed de novo. Because defense counsel did not
object to the remaining comments, we review them for plain error.
Oberle, 136 F.3d at 1421 (emphasis added). 4 True, the Oberle court did not
specify whether the district court had sustained or overruled the defendant’s
objection to the one challenged comment, but this simply demonstrates that the
Oberle court was following our precedent and not altering its standard of review
4
The defendant did move for a mistrial in Oberle, but only in response to
the testimony of an FBI agent—not in response to the alleged prosecutorial
misconduct. Oberle, 136 F.3d at 1417.
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depending upon whether the district court sustained or overruled the defendant’s
objection.
Indeed, in the only case from this circuit that the majority cites as support
for its plain error standard, we reviewed the prosecutorial misconduct claim for
plain error “[b]ecause defense counsel did not specifically object to the
prosecutor’s remarks about the reasonable person standard.” United States v.
Gonzalez-Montoya, 161 F.3d 643, 650 (10th Cir. 1998) (emphasis added). The
lack of precedent from our circuit which directly supports the majority’s position
is telling, particularly considering how frequently we review claims of
prosecutorial misconduct.
Application to Defendant’s trial
Under the appropriate standard of review applicable to the issues raised,
Defendant’s prosecutorial misconduct claim still fails. The two-step process for
evaluating claims of prosecutorial misconduct requires us first to “examine
whether the conduct was, in fact, improper.” Oberle, 136 F.3d at 1421. As
Defendant argues, and the government does not seriously contest, the prosecutor’s
appeal to the jury to assist in solving a pressing social problem by convicting
Defendant was improper. See, e.g., United States v. Johnson, 968 F.2d 768, 769-
70 (8th Cir. 1992) (reversing the defendant’s conviction and holding that “the
prosecutor’s remarks . . . were unduly inflammatory and improper” where the
prosecutor’s rebuttal closing argument included the following: “Your decision to
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uphold the law is very important to society. You’re the people that stand as a
bulwark against the continuation of what Mr. Johnson is doing on the street,
putting this poison on the street.”); United States v. Solivan, 937 F.2d 1146,
1148-55 (6th Cir. 1991) (reversing the defendant’s conviction where, during
closing argument, the prosecutor told the jury, “And I’m asking you to tell her
and all of the other drug dealers like her that we don’t want that stuff in Northern
Kentucky and that anybody who brings that stuff in Northern Kentucky . . . .”);
United States v. Monaghan, 741 F.2d 1434, 1442-43 (D.C. Cir. 1984) (holding
that the prosecutor’s remarks, in his rebuttal closing argument, that the defendant
was not an exemplary police officer and should be held to a higher standard of
conduct as a police officer, were improper).
Nevertheless, the prosecutor’s improper comment during opening argument
does not warrant reversal. “A prosecutor’s improper statement to the jury is
harmless unless there is reason to believe that it influenced the jury’s verdict. . . .
To warrant reversal, the misconduct must have been flagrant enough to influence
the jury to convict on grounds other than the evidence presented.” Gabaldon, 91
F.3d at 94. In analyzing whether the prosecutor’s improper statement affected the
outcome of the trial, we must “consider the trial as a whole, including the curative
acts of the district court, the extent of the misconduct, and the role of the
misconduct within the case.” Id. “Thus, factors relevant to determining whether
the improper commentary affected the fairness of the trial include whether the
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instance was singular and isolated, whether the district court instructed the jury
that the attorneys’ argument was not evidence, and whether there was substantial
evidence of the defendant’s guilt.” Oberle, 136 F.3d at 1420.
Here, the prosecutor made the improper remark during the government’s
opening statement. The prosecutor made no further reference to the statement
during the remainder of the trial. In United States v. Gallegos, 738 F.2d 378, 383
(10th Cir. 1984) (citations omitted), we explained that allegedly improper remarks
during the opening statement were harmless, because
[t]he comments were made at the very beginning of the trial in
opening statement. The matter was not mentioned again before the
jury until the defendant brought it up himself. The evidence against
defendant was substantial, if not overwhelming. The comments were
not made by the government in closing argument and they were not
fresh in the minds of the jurors . . . .
See also United States v. Portillo-Quezada, 469 F.3d 1345, 1352 (10th Cir. 2006)
(“More importantly, after the incident [during voir dire] the prosecutor made no
further attempts at trial to capitalize on the remarks . . . .”); Ivy, 83 F.3d at 1288
(“We ordinarily will not reverse if the misconduct was merely ‘singular and
isolated.’” (quoting United States v. Pena, 930 F.2d 1486, 1491 (10th Cir.
1991))). The fact that the trial lasted only three days does not change the singular
and isolated nature of the prosecutor’s statement. See United States v. Gordon,
173 F.3d 761, 769 (10th Cir. 1999) (“[T]he purported misconduct is insignificant
when the trial is considered as a whole. It consisted of a single question in a two-
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day proceeding that was not answered by Gordon nor commented on by the
prosecutor in closing argument.”).
Moreover, “[a] central assumption of our jurisprudence is that juries follow
the instructions they receive.” United States v. Castillo, 140 F.3d 874, 884 (10th
Cir. 1998); see also Gordon, 173 F.3d at 769 (“Absent evidence to the contrary,
we assume the jury follows a curative instruction.”). In this case, Defendant
immediately objected to the statement, and the district court instructed the jury to
“remember that what the lawyers tell you is not evidence, and the evidence in the
case is what you must decide.” Tr. at 161-62. Before opening statements began,
the court likewise instructed the jury that “[t]he opening statements are not
evidence,” id. at 143, and in the final jury instructions submitted before closing
arguments, the court reminded the jury to “consider only the evidence I have
admitted in the case” and that “any statements, objections, or arguments made by
the lawyers are not evidence in the case,” id. at 686.
Finally, contrary to Defendant’s contention, there was “substantial evidence
of [his] guilt.” Oberle, 136 F.3d at 1420. Mr. Boyd testified that Defendant
punched him twice in the face and dragged him out of the car, after which
someone immediately and repeatedly kicked Mr. Boyd in the face and ribs. Mr.
Howe testified that Defendant hit Mr. Boyd and pulled him out of the car; he did
not know if Defendant hit Mr. Boyd again. Even Ms. Echohawk testified that,
although she did not know if Defendant punched Mr. Boyd any additional times,
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thirty seconds elapsed between the time when Defendant audibly hit Mr. Boyd
and the time when Defendant returned to her side. Further, investigators found
Mr. Boyd’s blood on both the exterior and interior of the car, including the center
console and the passenger door.
Defendant is correct that Mr. Boyd’s testimony and Mr. Howe’s testimony
contained some inconsistencies when compared to their statements to the
investigator, Officer Koenig. Both Mr. Boyd and Mr. Howe, though, had
previously told Officer Koenig that defendant hit Mr. Boyd repeatedly, and most
of Mr. Boyd’s inconsistencies dealt with his conduct towards Ms. Echohawk, not
the details of the assault itself. As the district court stated, “depending on the
version the jury chooses to believe, . . . there is sufficient evidence . . . that would
support a conviction of the [D]efendant on Count 1 beyond a reasonable doubt.”
Given the strength of the evidence against Defendant, the jury had more than
enough evidence to find Defendant guilty beyond a reasonable doubt,
notwithstanding the improper statement by the prosecutor.
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