In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4232
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAMUEL H. JUMPER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 05 CR 30174—G. Patrick Murphy, Chief Judge.
____________
ARGUED MAY 25, 2007—DECIDED AUGUST 13, 2007
____________
Before BAUER, CUDAHY, and FLAUM, Circuit Judges.
CUDAHY, Circuit Judge. The defendant, Samuel Jumper,
appeals his conviction of conspiracy to distribute and
possession with intent to distribute marijuana. Jumper
offers two grounds for reversal both of which concern the
district court’s denial of his motion in limine to exclude
portions of the defendant’s videotaped interrogation from
evidence. Namely, Jumper argues that the district court
erred in admitting the videotaped interrogation in its
entirety because it contains (1) three questions which
the defendant refused to answer thereby invoking his
Fifth Amendment right to remain silent and (2) various
comments by the interrogating FBI agent which called
into question the defendant’s veracity. We find error as
2 No. 06-4232
to the first ground claimed by the defendant but not as to
the second. Regardless, we find the error harmless and
therefore affirm the conviction.
I. Background
The defendant, Samuel H. Jumper, was charged with
one count of conspiracy to distribute and possession with
intent to distribute marijuana pursuant to 21 U.S.C. § 846
and one count of possession with intent to distribute
marijuana pursuant to 21 U.S.C. § 841(a)(1). The defen-
dant was found guilty by jury verdicts of both counts
and was sentenced to 188 months’ imprisonment.
This appeal concerns the admission of a videotape of
Jumper’s post-arrest, custodial interrogation on October 9,
2005. Earlier that same day, Jumper and two other
individuals were arrested by Drug Enforcement Agents
after twenty-two boxes on a tractor-trailer which the three
individuals were unloading were found to contain mari-
juana. Before beginning the interrogation, Drug Enforce-
ment Agent Eric Zaber informed Jumper of his rights:
Before we ask you any questions you must understand
you have rights. You have the right to remain silent.
Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before
we ask you any questions or have him or her with you
during questioning. If you can not [sic] afford a lawyer,
one will be appointed to you before any questions if
you wish. If you decide to answer questions now
without a lawyer present you will have the right to
stop answering at any time. You also have the right to
stop answering at any time until you have a lawyer.
So basically it says on there, like I was telling you,
[i]f there’s some questions you don’t want to answer
you can just bypass, I don’t want to answer that one.
(Government’s Ex. 5A at 1.)
No. 06-4232 3
During the interview, on three separate occasions,
Jumper indicated that he did not want to answer a certain
question. The first instance involved Agent Zaber’s ques-
tioning of the delivery arrangement:
[Eric Zaber]: But, you call him up and what does he
tell ya[?] What do you tell him[?] What’s this conversa-
tion like?
[Samuel Jumper]: I just call[ed] him up[,] told him
I was in Troy at the truck stop.
EZ: O.[K].
SJ: Told him what exit I was at and he told me he
would send his a, send one of his guys up. So that’s
what they did.
EZ: To get the pipe fittings[?]
SJ: Yes.
EZ: Does that seem unusual?
SJ: No not really, I, I mean, I just not gonna, I don’t
wanna answer that.
(Id. at 5.) The second instance of reluctance to answer
involved a previous incident when a trailer owned by the
defendant had been stopped with marijuana in it:
EZ: Um, did you have a tractor trailer or trailer that
you own that was stop[ped] with some marijuana in it?
SJ: I had a trailer of mine.
EZ: A trailer[?]
SJ: Yes, yes.
EZ: Who was driving that?
SJ: I’d rather not say.
EZ: Larry Nunley?
SJ: I’d rather not say.
4 No. 06-4232
EZ: O.[K].
SJ: Because like I said, I don’t know what he was
into . . .
EZ: Well, that makes two of us . . .
SJ: I don’t want to get into it . . .
(Id. at 11-12.) The third and final instance occurred when
Agent Zaber was questioning Jumper about transporting
illegal money:
EZ: . . . [W]hat kind of people use truck drivers to run
money, you[’ve] been a truck driver for sixteen years.
What kind of people use truck drivers to run money[?]
SJ: Depends on what kind of money they[’re]
runnin[g].
EZ: Illegitimate money. Money that they don’t want to
be found. What kind of, what kind of people[?]
SJ: I don’t know. Rather not answer that.
EZ: So you’ve been a truck driver for sixteen years, and
you have no idea, the kind of people that would . . .
SJ: I’m not even gonna answer that, cause like I say
then if they answer, then you incriminate yourself,
then you[’re] taken to a . . . use that against me in the
court of law again.
(Id. at 20.)
During the interview, Agent Zaber also made comments
indicating that he believed that Jumper was lying:
SJ: Because, I’m not gonna tell you no lie.
EZ: Well, I, I don’t think that part is true, but . . .
(Id. at 13.)
SJ: I wouldn’t lie to you there.
No. 06-4232 5
EZ: Well, I think you have lied to us earlier already.
...
EZ: Pulling those words back. You say em and you[’re]
very quick to catch em. But you, once they . . . come
out you can’t pull it back . . . .
(Id. at 19.) Jumper also cites in his brief other comments
made by Agent Zaber concerning Jumper’s truthfulness
or credibility.
Prior to trial, the defendant filed a motion in limine
to exclude portions of the videotaped statement from
evidence on two different grounds. First, the defendant
argued that he exercised “his Fifth Amendment right not
to answer a question or series of questions” in the three
instances previously cited. (R. 93 at 1.) Second, the defen-
dant argued that “[a]t several points in the interview, the
Agent expresses his personal opinion about the credibility
of Defendant’s answers, or argues with the Defendant, or
discusses potential further cooperation with the Defen-
dant.”1 (Id. at 2.) In its response to the motion, the Govern-
ment argued that the right to remain silent only attaches
“where a defendant has maintained complete silence.” (R.
94 at 2.) As for the portions of the interview where Agent
Zaber questions the defendant’s credibility, the Govern-
ment argued that the defendant failed to cite any cases in
support of his argument that the probative force of the
agent’s statements are outweighed by their prejudicial
effect. (Id.) The district court denied the motion without
opinion. (R. 95.)
1
On appeal, the defendant only raises concerns with the
portions of the tape in which Agent Zaber offers his personal
opinion about the credibility of Jumper’s answers.
6 No. 06-4232
II. Discussion
A. Standard of Review
Before turning to the merits of the appeal, we must
first resolve the appropriate standard of review. We re-
view a district court’s ruling as to the admission or exclu-
sion of evidence for abuse of discretion. United States v.
Wilson, 307 F.3d 596, 599 (7th Cir. 2002). Whether an
evidentiary ruling had the effect of infringing a defendant’s
constitutional rights is a question of law which is reviewed
de novo. Id. If we find a constitutional error in an eviden-
tiary ruling, we reverse unless the error is harmless.
Chapman v. California, 386 U.S. 18, 22 (1967); United
States v. Wick, 416 F.2d 61, 62 (7th Cir. 1969). An error is
harmless if it appears “beyond a reasonable doubt that the
error complained of did not contribute to the verdict
obtained.” Ben-Yisrayl v. Davis, 431 F.3d 1043, 1052 (7th
Cir. 2005) (quoting Chapman, 386 U.S. at 24) (quotation
marks omitted).
The Government argues that the defendant failed to
make a proper objection at trial, and therefore we should
review the admission of evidence for plain error instead of
for abuse of discretion. This argument lacks any merit. The
defendant had filed a motion in limine to exclude portions
of the defendant’s videotaped statement. (R. 93.) The
motion raised the same concerns raised in the present
appeal. The district court denied the motion on the record,
thus preserving the issue for appeal. See Fed. R. of Evi-
dence 103 (“Once the court makes a definitive ruling on the
record admitting or excluding evidence, either at or before
trial, a party need not renew an objection or offer of proof
to preserve a claim of error for appeal.”). If that were not
enough, prior to Agent Zaber’s testimony, the defendant’s
counsel also had the following exchange with the court:
MR. JENKINS: Your Honor, simply for the record,
prior to Mr. Zaber’s testimony, and I believe as a part
No. 06-4232 7
of his testimony, the government will move to add . . .
in videotape. For the record, I filed a motion in limine
to exclude portions of the videotape prior to trial and
the Court has ruled on that. For purposes of the
record, if I could simply incorporate that objection
before it is played so that it would be a part of the trial
record, I’d appreciate it.
THE COURT: All right. I think you preserved the
point.
(Tr. Vol. 2 at 3.) The defendant made a timely objection
stating the specific grounds that he now raises in the
present appeal, therefore we review for abuse of discretion
the district court’s decision to deny the motion in limine,
allowing the videotaped interrogation to be admitted in
its entirety.
B. Right to Remain Silent as to Selective Questions
We now turn to the portions of the videotaped interroga-
tion where the defendant refused to answer Agent Zaber’s
questions. “[T]he Fifth Amendment, in its direct applica-
tion to the Federal Government and in its bearing on the
States by reason of the Fourteenth Amendment, forbids
either comment by the prosecution on the accused’s silence
or instructions by the court that such silence is evidence
of guilt.” Griffin v. California, 380 U.S. 609, 615 (1965);
see also Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966);
United States v. Nielson, 392 F.2d 849, 851-52 (7th Cir.
1968). This rule is grounded in a concern that the jury
may draw prejudicial inferences from the defendant’s
silence. Nielson, 392 F.2d at 852. The issue in the present
case is whether this rule applies only when a defendant
has invoked the right to remain silent as to all further
questions thereby terminating the interview or whether
it also precludes any comment at trial about the defen-
8 No. 06-4232
dant’s invocation of the right to remain silent as to selec-
tive questions. This, of course, begs the question whether
a defendant has the right to remain silent as to specific
or selective questions.
We have previously held that the right to remain silent,
in a custodial interrogation, attaches to a defendant’s
refusal to answer a specific question, and therefore the
Government may not comment on the defendant’s refusal
to answer a specific question at trial. In United States v.
Wick, 416 F.2d 61, 62 (7th Cir. 1969), we held that it was
error to introduce an FBI agent’s testimony that a defen-
dant during a post-arrest, custodial interrogation refused
to answer questions about where he obtained certain
counterfeit notes.2 Further, a number of our sister circuits
have also considered this question. The First, Fourth and
Sixth Circuits have all held that the right to be silent
applies to a defendant’s refusal to answer selective ques-
tions. See Greico v. Hall, 641 F.2d 1029, 1034 (1st Cir.
1981) (“Miranda protections apply equally to refusals to
answer specific questions.”) (emphasis added); United
States v. Williams, 665 F.2d 107, 109 (6th Cir. 1981)
(holding that the admission of an FBI agent’s testimony
that the defendant “answered some questions but then
refused to say how much and in what manner he paid for
the vehicle and from whom he purchased it” constituted
plain error); United States v. Ghiz, 491 F.2d 599, 600 (4th
Cir. 1974) (“[I]n declining to answer certain questions, a
criminal accused invokes his fifth amendment privilege or
in any other manner indicates he is relying on his under-
standing of the Miranda warning, evidence of his silence or
of his silence to answer specific questions is inadmissible.”)
(emphasis added).
2
In Wick, as in the present case, we also found the error to be
harmless. 416 F.2d at 62.
No. 06-4232 9
In response, the Government primarily relies on United
States v. Davenport, 929 F.2d 1169 (7th Cir. 1991), in
support of its argument that “if a defendant starts down
an exculpatory path by providing statements and then
clams up and refuses to expand on those statements, the
latter silence may be introduced at trial.” (Government’s
Br. at 23 (citing Davenport, 929 F.2d at 1174).) Davenport
involved a non-custodial interview by IRS agents. The
court explained: “[The IRS agent] gave [the defendant]
the option not to answer his questions and it is arguable
that when she declined it, all bets were off; that no under-
standing was violated when he testified to the full range of
her answers, including refusals to answer.” 929 F.2d at
1175. But, our holding in Davenport was entirely depend-
ant on the fact that the interrogation in question in that
case was noncustodial. The opinion repeatedly makes note
of this fact. See id. at 1174 (“As they were not in custody,
there was no implicit threat if they kept mum.”); id. (“As
in this case, there was no implicit threat based on a
custodial situation.”); id. at 1175 (“[O]utside the coercive
setting of a custodial interrogation, willingness to answer
some questions can properly be given greater weight in
deciding whether that willingness should forfeit the right
to object to comment on a refusal to answer a particular
question.”). Davenport is therefore distinguishable from
the present case since Jumper’s interrogation occurred
post-arrest, while in custody.3
3
In United States v. Bonner, 302 F.3d 776, 783-74 (7th Cir.
2002), we followed the rule defined in Davenport and held that
the admission of testimony about the defendant’s silence dur-
ing a noncustodial interrogation was not in error. In Bonner, the
court hinted that the custodial / noncustodial distinction might
be of no import. Id. at 783 (“The government suggests we need
not consider Bonner’s argument for the simple reason that he
(continued...)
10 No. 06-4232
Further, the rule in Davenport is rooted, at least in part,
in a concern that the interrogated individual will some-
how attempt to exploit this right to silence as to specific
questions at trial. “The privilege against self-incrimination
is not a privilege to attempt to gain an advantage in the
criminal process . . . .” Davenport, 929 F.2d at 1174. See
also United States v. Bonner, 302 F.3d 776, 784 (7th Cir.
2002) (“[T]he law does not provide a sword by which the
defendant may selectively testify as to the merits of his
prosecution, yet shield himself from comment on his
failure to explain incriminating evidence properly admitted
prior to his testimony.”) (quoting McGahee v. Massey, 667
F.2d 1357, 1364 (11th Cir. 1982)) (alteration in original).
But, that concern in not at issue in the present case. Here,
the defendant did not testify on his own behalf. The tape
was not entered into evidence for impeachment purposes,
but rather, as part of the Government’s case-in-chief.
There may be instances where a defendant chooses, for
whatever reason, not to provide additional details, but at
the same time, does not invoke his or her right to remain
silent. See United States v. Pitre, 960 F.2d 1112, 1126 (2d
Cir. 1992); United States v. Goldman, 563 F.2d 501, 502-04
(1st Cir. 1977). To be clear, in order for a defendant to
have a right to remain silent as to a specific or selective
question (and the corresponding right that the prosecution
will not comment on this silence), the defendant must
indicate in some manner that he is invoking that right.
3
(...continued)
was not yet ‘in custody’ during his encounter with Agent Penton;
we prefer, however not to resolve that point, since it is clear in
any event that there was nothing wrong with the reference to
Bonner’s selective silence.”). Since the court in Davenport placed
significant emphasis on the fact that the defendant was not in
custody during the interrogation in question, we decline now to
explore this question posed in Bonner.
No. 06-4232 11
However, “a suspect need not rely on talismanic phrases
or any special combination of words to invoke the right
to silence.” Bobo v. Kolb, 969 F.2d 391, 396 (7th Cir. 1992)
(quotation marks and citations omitted). At the same
time, silence itself may not be enough to invoke a right
to silence. See Pitre, 960 F.2d at 1125 (holding the Gov-
ernment was entitled to introduce evidence of the defen-
dant’s refusal to answer a question—“He basically looked
at the floor and looked at the ceiling.”—since the defendant
waived his right to remain silent under Miranda and failed
to “resurrect” it by asserting it thereafter).
In the present case, at least with respect to the first
and third instances cited by the defendant, Jumper
invoked his right to remain silent by using the very words
provided to him by Agent Zaber in explaining the Miranda
warning. Recall Agent Zaber specifically instructed
Jumper that “[i]f there’s some questions you don’t want
to answer you can just bypass, I don’t want to answer
that one.”4 (Government’s Ex. 5A at 1.) In the first instance
in which Jumper claims he invoked his right to remain
4
Even if we were to hold that a defendant does not have a right
to remain silent as to specific or selective questions, the admis-
sion of the tape in its entirety would still be suspect in light of
Agent Zaber’s warning. In advising Jumper of his rights, Agent
Zaber told Jumper that he did have a right to remain silent as
to specific questions. “If there’s some questions you don’t want
to answer you can just bypass, I don’t want to answer that one.”
(Government Ex. 5A at 1.) The argument could be made that
Jumper did not knowingly waive his rights due to the agent’s
description of them. See Moran v. Burbine, 475 U.S. 412, 421
(1986) (“[T]he waiver must have been made with a full aware-
ness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.”); but see Duckworth
v. Eagan, 492 U.S. 195, 200-01 (1989) (plurality opinion) (holding
that informing a suspect that an attorney would be appointed “if
and when you go to court” does not render Miranda warnings
inadequate).
12 No. 06-4232
silent, he specifically stated, “I don’t want to answer that.”
In the third instance, he said, “Rather not answer that,”
and “I’m not even gonna answer that.” The second instance
is not as clear since Jumper simply stated that he did not
want to provide a name. This refusal could reasonably be
viewed as a refusal to give a detail rather than an invoca-
tion of his right to remain silent. But, with regard to the
last instance, Jumper went so far as to quote the Miranda
warning virtually verbatim in invoking his right. Clearly
by this point, Jumper had invoked his right to remain
silent, and the Government should not have been allowed
to submit that portion of the videotape into evidence. We
find that the district court abused its discretion in allowing
into evidence the portions of the videotaped interrogation
where the defendant invoked his right to remain silent by
stating that he did not want to answer the question.
Finding error, we now turn to whether this error is
harmless since we will only reverse a conviction if the
error is not harmless. An error is harmless if it appears
“beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.” Ben-Yisrayl v.
Davis, 431 F.3d 1043, 1052 (7th Cir. 2005). In Phelps v.
Duckworth, 772 F.2d 1410 (7th Cir. 1985) (en banc), we
delineated the following factors to consider in determining
whether an impermissible prosecutorial comment regard-
ing post-arrest silence requires reversal:
1. The use to which the prosecution puts the post-
arrest silence.
2. Who elected to pursue the line of questioning.
3. The quantum of other evidence indicative of guilt.
4. The intensity and frequency of the reference.
5. The availability to the trial judge of an opportunity
to grant a motion for mistrial or to give curative
instructions.
No. 06-4232 13
772 F.2d at 1413; see also United States v. Massey, 687
F.2d 1348, 1353 (10th Cir. 1982); Williams v. Zahradnick,
632 F.2d 353, 361-62 (4th Cir. 1980).
The Government elected to admit the videotaped inter-
rogation in its entirety as part of its case-in-chief against
the defendant. This fact cuts in favor of finding that the
error was not harmless. However, outside of the admission
of the tape in its entirety, there was no reference to
Jumper’s statements that he did not want to answer a
question. In no way did the Government highlight these
portions of the videotaped interrogation. Specifically,
Agent Zaber was not asked to testify about Jumper’s
refusal to answer certain questions. Lastly, and most
importantly, there is significant evidence of Jumper’s
guilt in the record.5 In brief, Officer Huskey, on patrol the
night of October 9, 2005, testified that he discovered the
defendant and two co-defendants in a parking lot at 1:00
in the morning unloading three boxes from a tractor-trailer
into a van. (Tr. Vol. 3 at 7-8.) These three boxes and the
twenty-two additional boxes and three duffle bags still
in the trailer together contained more than 1000 kilograms
of marijuana. (R. 89.) According to Officer Huskey, the
defendant told him that the three boxes which had been
moved to the van contained “dirty socks,” explaining that
he had been on the road for a long time. (Tr. Vol. 3 at 11.)
Officer Warren testified that Jumper told him about
picking up “pot” only to recant once he realized he had let
the word “pot” slip out and insisted that he said “pipe
fittings” instead. (Tr. Vol. 4 at 5.) A total of twelve cell
phones and $14,000 in cash were confiscated. (Tr. Vol. 2
at 29, 53.) Edgar Kelly (one of the co-defendants who
5
Given the weight of evidence against Jumper, why the
Government simply did not exclude voluntarily the inad-
missible portions of the videotape escapes us.
14 No. 06-4232
cooperated with the police and plea bargained) testified
that Jumper had hired him to drive with him from Phoenix
to deliver the marijuana. (Tr. Vol. 1. at 24-25.) Kelly
further testified that he had once before received an
assignment to drive drugs from Jumper. (Id. at 21.)
Throughout the drive involved here, according to Kelly,
Jumper repeatedly called the person who was to receive
the marijuana delivery. (Id. at 31.) Ignoring the portions of
the videotaped interrogation where Jumper invokes his
right to remain silent, we find Jumper’s answers to be
vague and his claim that he did not know what was in
the boxes entirely unconvincing. At best, Jumper’s trial
counsel managed to raise some questions about whether
Jumper was in charge, as Kelly testified, or whether Kelly
was the leader. Regardless, this question does not im-
pact Jumper’s guilt under either charge. In light of the
significant evidence of Jumper’s guilt, we find “beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Ben-Yisrayl, 431 F.3d
at 1052.
C. Prejudicial Effect of Comments Concerning
Defendant’s Credibility
We now turn to the second ground offered by the defen-
dant for reversal—that the district court erred in admit-
ting the portions of the videotaped interrogation wherein
Agent Zaber comments on the defendant’s truthfulness.
The defendant argues that Agent Zaber’s comments on the
defendant’s veracity, namely, telling Jumper that he
thought he was lying, should have been excluded since
their prejudicial effect outweighs any probative value,
pursuant to Federal Rule of Evidence 403. Either as
support for a finding of prejudice or as a second ground for
reversal, the defendant cites cases from the Sixth and
Ninth Circuits where the court has held that an officer’s
No. 06-4232 15
opinion regarding the guilt or innocence of the defendant
cannot be admitted because these comments affect the
trial’s fundamental fairness and invade the province of the
jury. (Defendant’s Opening Br. at 20-21 (citing United
States v. Harber, 53 F.3d 236 (9th Cir. 1995); Cooper v.
Sowders, 837 F.2d 284, 287 (6th Cir. 1988); United States
v. Scop, 846 F.2d 135, 142 (6th Cir. 1988)).)
Although the question of veracity may go to the ultimate
question of guilt or innocence, these issues are not the
same, and Agent Zaber did not directly comment on
Jumper’s guilt. Therefore, the authority offered from our
sister circuits is not on point. Moreover, Agent Zaber’s
videotaped comments are not testimony under oath;6 the
jury could reasonably have viewed these comments as
a strategic interrogating tactic of the agent. Since the
defendant does not offer any other ground for a finding
that the prejudicial force outweighs the probative value,
we hold that the district court did not abuse its discretion
in admitting the portions of the videotaped interrogation
where Agent Zaber questions the defendant’s veracity.
Regardless, as explained above, any error would have
been harmless.
III. Conclusion
For the foregoing reasons, we AFFIRM the defendant’s
conviction.
6
It appears the district court made such a distinction. Relying
on Federal Rule of Evidence 704, which forbids an expert wit-
ness from testifying as to the “whether the defendant did or did
not have the mental state or condition constituting an element
of the crime charged or of a defense thereto,” the district court
did not allow Agent Zaber to testify as to Jumper’s truthfulness,
but the court did allow Agent Zaber’s videotaped comments
into evidence. (Tr. Vol. 2 at 4-5.)
16 No. 06-4232
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-13-07