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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13730
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00046-MP-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH CHRISTIAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 17, 2015)
Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Kenneth Christian appeals his convictions for armed bank robbery,
possessing and brandishing a firearm during a crime of violence, and being a felon
in possession of a firearm. Christian challenges his convictions on two grounds.
First, he contends that plain error occurred because the prosecutor commented on
Christian’s pre-trial incarceration and suggested that he belonged in custody
because he was dangerous. Second, he argues that the district court abused its
discretion in limiting his cross-examination concerning a cooperating co-
defendant’s bias. After review of the record and consideration of the parties’
briefs, we affirm.
I.
Just before noon on March 28, 2012, a PNC Bank in Gainesville, Florida,
was robbed. Surveillance photos showed the robber, later determined to be
Christian, being dropped off by a white Chevrolet Tahoe. Dressed all in black
except for white gloves, Christian entered the bank with a gun in his right hand and
a ski mask over his face. Christian pointed a gun at one of the bank managers,
threw a bag at him, and told him to fill it with money. The manager took the bag
to one of the tellers, who filled the bag with just over $2,000 and a dye pack.
Christian grabbed the bag and fled the bank. The dye pack exploded as Christian
ran to the same white Tahoe. During the course of the robbery, Christian twice
threatened to shoot the manager if bank employees did not hurry up.
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A day or two after the robbery, Christian called an acquaintance, Joseph
Riley, to ask if he could stop by and request a favor. Christian and his girlfriend,
Dania Ifill, went to Riley’s residence. While there, Christian told Riley he needed
a place to hide out for a couple of days. He eventually admitted to both Ifill and
Riley that he had robbed the PNC Bank. Ifill then left. Riley and his wife allowed
Christian to stay one night in their house. Out of fear, they did not call the police,
although Riley later told his employer what Christian had said. Christian left early
the next morning. At some point thereafter, Christian fled to the United States
Virgin Islands.
In investigating the robbery, police searched records of white Chevrolet
Tahoes in the central Florida area. One of the vehicles belonged to the stepfather
of Kentrell Houston. Houston was pulled over in the Tahoe several times by police
following the robbery, but he denied involvement. During one of these stops,
police searched the Tahoe with Houston’s consent and found white gloves in the
back portion of the vehicle. In a later interview with police, Houston eventually
admitted to being the getaway driver for the robbery.
Christian was arrested in the Virgin Islands and transported to the Alachua
County Jail in Gainesville. He asked to speak with federal officials because he
wanted the case to be prosecuted federally. On September 7, 2012, two detectives
and a federal agent jointly interviewed Christian. During the recorded interview at
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the jail, Christian confessed that he had committed the bank robbery. He also
provided details about the robbery, including that he had used a .40-caliber pistol.
Christian and Houston were indicted in November 2012. Christian was
charged with one count each of armed bank robbery, in violation of 18 U.S.C.
§§ 2113(a), 2113(d), and 2, possessing and brandishing a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 2, and being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Christian proceeded to trial. Houston pled guilty and testified for the government
at trial.
A jury found Christian guilty of all three counts. The district court
adjudicated Christian guilty and sentenced him to a total term of 346 months of
imprisonment. Christian now appeals.
II.
Christian argues for the first time on appeal that the prosecutor, when
questioning Ifill during the trial, suggested that Christian belonged in custody
because he was dangerous. According to Christian, this exchange, when viewed in
context of a pattern of references to his incarceration throughout the trial, impaired
his presumption of innocence.
Where no objection is made at trial, we review for plain error whether
comments about a defendant’s incarceration deprived him of a fair trial in violation
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of due process. See United States v. Barcenas, 498 F.2d 1110, 1113 (5th Cir.
1974). 1 To establish plain error, a defendant must show (1) error, (2) that is plain,
and (3) that affects substantial rights. United States v. Evans, 478 F.3d 1332, 1338
(11th Cir. 2007). If all three conditions are met, we may exercise our discretion to
recognize the error, but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
The Supreme Court has held that the presumption of innocence may be
impaired, and the due-process right to a fair trial violated, where the accused is
compelled to stand trial while dressed in clearly identifiable prison clothing.
Estelle v. Williams, 425 U.S. 501, 503-05, 96 S. Ct. 1691, 1692-93 (1976); see also
United States v. Harris, 703 F.2d 508, 509-12 (11th Cir. 1983) (holding that due
process was violated where the defendant was compelled to dress in prison
clothing during jury voir dire). The Court explained that prison clothing is a
“constant reminder of the accused’s condition” that is likely to be a “continuing
influence throughout the trial,” presenting an unacceptable risk of “impermissible
factors coming into play” and corrupting a juror’s judgment. Estelle, 425 U.S. at
504-05, 96 S. Ct. at 1693. For example, we have noted that a jury’s knowledge of
a defendant’s pre-trial incarceration “may lead the jury to speculate that the
1
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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defendant is particularly dangerous.” United States v. Villabona-Garnica, 63 F.3d
1051, 1058 n.6 (11th Cir. 1995) (citing Harris, 703 F.2d at 510)).
Likewise, we have recognized that comments about a defendant’s
incarceration also can impair the presumption of innocence. See, e.g., id. at 1058.
Comments about a defendant’s incarceration do not, however, constitute reversible
error per se. Id. Rather, we consider the context and circumstances to determine
whether the comments prejudiced the defendant’s right to a fair trial. See id.
(collecting cases); see also United States v. Flores, 572 F.3d 1254, 1262 (11th Cir.
2009); United States v. Emmanuel, 565 F.3d 1324, 1335 (11th Cir. 2009)
(“[W]here the comment is brief, unelicited, and unresponsive, adding nothing to
the government’s case, the denial of a mistrial is proper.”).
During direct examination of Ifill as part of the government’s case-in-chief,
the prosecutor asked, “Are you concerned for your safety?” Ifill responded, “A
little.” The government replied, “Do you know he’s in custody, though?” Ifill
responded, “Yes, I know.” Christian contends that the prosecutor’s comments
improperly suggest that Christian should be incarcerated because he was dangerous
and posed a threat to Ifill.
The prosecutor’s question to Ifill about Christian being in custody was
improper. In contrast to Barcenas and Villabona-Garnica, for example, the
reference to pre-trial custody did not come from a witness’s non-responsive answer
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but instead came directly from the prosecutor. See Villabona-Garnica, 63 F.3d at
1058; Barcenas, 498 F.3d at 1113-14. Although Christian acknowledges in his
reply brief that his dangerousness “was germane to the case,” the reference to
Christian’s pre-trial custody should have been avoided.
Nonetheless, we cannot conclude that Christian has shown “that the
remark[s] so influenced the trial’s outcome or affected his rights as to constitute
plain error.” United States v. Veteto, 701 F.2d 136, 140 (11th Cir. 1983). Viewing
the remarks in context, we believe that any prejudice resulting from the
prosecutor’s questioning did not substantially affect the fairness of the trial. See
United States v. Young, 470 U.S. 1, 20, 105 S. Ct. 1038, 1048-49 (1985) (holding
that a prosecutor’s improper remarks did not rise to the level of a plainly erroneous
due-process violation because they did not “undermine the fairness of the trial and
contribute to a miscarriage of justice error”).
First, the government introduced extensive evidence, unchallenged by
Christian both below and on appeal, establishing Christian’s dangerousness even
before the prosecutor’s improper comments. Ifill herself testified that she was
threatened several times by Christian, including that Christian was “going to make
[Ifill’s] life a living hell.” Given that the reference to Christian’s pre-trial
incarceration immediately followed this discussion of Christian’s threats, the
prosecutor’s comments did not inject into the trial any implication of
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dangerousness that was not already present to a significant extent. Other evidence
before the improper comments similarly supports that Christian was dangerous.
Riley and his wife both testified that they were fearful of Christian. And both Ifill
and Riley testified that Christian admitted committing the armed bank robbery,
which, according to the bank employees’ earlier testimony, involved threats of
shooting innocent employees.
Second, other references to Christian’s pre-trial incarceration were made for
the purpose of establishing a foundation and context for the admission of
Christian’s confession at the county jail.2 As such, these later references to jail and
Christian’s pre-trial incarceration were relevant to issues properly before the jury at
trial. See Barcenas, 498 F.2d at 1113 (stating that references to “jail,” “prison,”
and similar terms are “to be avoided, where irrelevant”) (emphasis added). And
since they independently established Christian’s in-custody status, the prosecutor’s
comments to Ifill added nothing that was not already admissible.
Third, and finally, the evidence overwhelmingly established Christian’s guilt
of the bank robbery. Cf. Harris, 703 F.2d at 513 (“[I]f the evidence of guilt is
overwhelming, then the constitutional error occasioned by the defendant's
appearance in a prison uniform is harmless under [Chapman v. California, 386
U.S. 18, 87 S. Ct. 824 (1967). Both Ifill and Riley testified that Christian told
2
Christian does not argue that the confession was involuntary.
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them that he had robbed the bank. Houston testified that he was the getaway driver
for Christian when Christian robbed the bank. And in Christian’s confession,
played before the jury at trial, Christian admitted that he robbed the bank, and he
provided details about the bank robbery that were consistent with the other
evidence in the case. In addition, Ifill testified that she found dye-stained money in
their washing machine, after being told by Christian not to look inside, and
Christian’s brother’s wife testified that she received a bag from Ifill after the
robbery containing Christian’s clothing and a .40-caliber pistol, which was the type
of gun used in the robbery.
Consequently, even if the prosecutor’s remarks were improper, Christian has
not shown that the remarks so influenced the trial’s outcome or affected his right to
a fair trial as to constitute plain error. See Veteto, 701 F.2d at 140.
III.
Christian next argues that his inability to question Houston about other
crimes violated his right to cross-examination under the Sixth Amendment because
he was unable to explore part of the benefits that Houston received from testifying.
We review a district court’s decision limiting cross-examination for abuse of
discretion. United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir. 2007).
Nonetheless, the district court’s discretion in limiting the scope of cross-
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examination is subject to the requirements of the Sixth Amendment. United States
v. Williams, 526 F.3d 1312, 1319 (11th Cir. 2008).
The Confrontation Clause of the Sixth Amendment “guarantees criminal
defendants an opportunity to impeach through cross-examination the testimony of
witnesses for the prosecution.” United States v. Baptista-Rodriguez, 17 F.3d 1354,
1370 (11th Cir. 1994). “The importance of full cross-examination increases where
the witness is the star government witness or participated in the crimes for which
the defendant is being prosecuted.” Williams, 526 F.3d at 1319. Also, “where a
prosecution witness has been threatened with a criminal charge or actually charged
with a criminal offense, the defendant is entitled to explore those circumstances on
cross-examination in order to bring to the jury’s attention the witness’ possible
motive or self-interest with respect to the testimony given.” United States v.
Garrett, 727 F.2d 1003, 1011 (11th Cir. 1984), superseded by statute on other
grounds, United States v. Elgersma, 929 F.2d 1538, 1544-45 (11th Cir. 1984).
But not all limitations on otherwise permissible cross-examination violate
the Confrontation Clause. Baptista-Rodriguez, 17 F.3d at 1370. Trial judges may
impose reasonable limits on otherwise permissible cross-examination based on
various concerns, including confusion of the issues or interrogation that is
repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673,
679, 106 S. Ct. 1431, 1435 (1986). “The test for the Confrontation Clause is
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whether a reasonable jury would have received a significantly different impression
of the witness’ credibility had counsel pursued the proposed line of cross-
examination.” United States v. Garcia, 13 F.3d 1464, 1469 (11th Cir. 1994).
At trial, Houston testified that he had pled guilty to bank robbery and to
aiding and abetting in the possession of a firearm, and that he was cooperating with
the government in hopes of receiving a reduced sentence. Houston further
explained that, on May 31, 2012, a detective asked Houston to come to the police
station to speak with him about “something else.” At some point the discussion
turned to the bank robbery and, after initially lying about his involvement, Houston
eventually confessed to knowing about and participating in the robbery.
On cross-examination, defense counsel asked Houston if he had ever been
charged with the crime—the “something else”—that the detective originally
wanted to talk to him about. The government objected. During a sidebar
conference, the following exchange took place:
[Prosecutor]: My concern is [defense counsel] has
been asking him have you ever been
charged with a crime. That’s not proper
impeachment – but to say he has been
charged because he has one prior charge
and I have a copy of the nolle prosequi.
[Defense Counsel]: That’s precisely what I want to ask him.
[The Court]: It is your contention that that’s part of a
plea bargain?
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[Defense Counsel]: That’s my contention. He didn’t get
charged with a shooting incident
involved with a firearm that’s not
involved in the case.
While the transcript does not reflect a ruling by the court, the parties agree
that the court sustained the government’s objection. Defense counsel then cross-
examined Houston about his possession of another firearm and proceeded to
question Houston about how he hoped to benefit from testifying against Christian.
In response to defense counsel’s questions, Houston responded that he had to earn
any benefit he would receive from the government, and that one of the ways to do
so was to testify that Christian was the robber.
Under the circumstances, we cannot say that a reasonable jury would have
received a significantly different impression of Houston’s credibility had the court
allowed the proposed line of questioning to continue. See Garcia, 13 F.3d at 1469.
While the importance of cross-examining Houston was heightened because he was
involved in the robbery at issue and was potentially threatened with some
unspecified other criminal charge, Houston’s motives for testifying and potential
biases were sufficiently explored during cross-examination. Houston testified that
he was a bank robber, that he had repeatedly lied to police, that he had pled guilty
to this robbery, that he faced up to life imprisonment, that he had testified with the
hope of receiving a more lenient sentence, and that one of the ways for him to earn
a lesser sentence was to say that Christian was involved in the robbery. Other than
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the “something else,” Christian’s cross-examination of Houston was not limited by
the court. Taken together, the jury was presented with substantial evidence to draw
a fair inference about Houston’s credibility and his motives for testifying.
Christian suggests that the “something else” was so significant that, when
confronted with it, Houston changed his tune and admitted to his involvement with
the bank robbery. We disagree with that characterization of Houston’s testimony.
Although Houston was at the police station to talk about “something else,” his
testimony reflects that he changed his story after the discussion had already turned
to the bank robbery. He testified that he initially lied and said that he was unaware
that Christian planned to commit a bank robbery and that he was innocently
driving him to see a girl, but when pressed about his explanation, he told the police
the truth.
Overall, the jury would not have received a significantly different
impression of Houston’s credibility had the court allowed the proposed line of
questioning to continue. Therefore, the Confrontation Clause was satisfied, and
the district court did not abuse its discretion in limiting cross-examination.
AFFIRMED.
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