[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
September 30, 2005
No. 04-15738 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00481-CR-T-23-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEE GAINER, SR.,
DAVID LEE GAINER, JR.,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(September 30, 2005)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
This opinion involves the appeals of David Lee Gainer, Jr. and his father
David Lee Gainer, Sr., who were jointly tried and convicted.
Gainer, Jr. was convicted of: one count of conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371; eleven counts of bank fraud, in violation of
18 U.S.C. §§ 1344 and 2; one count of conspiracy to commit bank fraud as an
employee of a federally insured bank through solicitation, demand, and acceptance
of commissions or gifts for procuring loans, in violation of 18 U.S.C. § 371; and
one count of receipt of commissions or gifts for procuring a loan as an employee
of a financial institution, in violation of 18 U.S.C. § 215(a)(2). He received
concurrent sentences of 46 months on each count.
Gainer, Sr. was convicted of one count of conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371, and seven counts of bank fraud, in
violation of 18 U.S.C. §§ 1344 and 2. He received 21-month concurrent
sentences.
I.
Gainer, Jr. contends that the district court committed a Batson error in
allowing the government to use a peremptory challenge to strike a Hispanic
prospective juror, Ida Cesareo, on the basis of her race. The government contends
that Gainer, Jr. failed to make a prima facie showing of discriminatory intent. The
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government also contends that it offered a sufficient, race-neutral reason for
striking Cesareo—that Cesareo, who spoke English as a second language, did not
understand English well enough to follow the case, which involved complex
banking terminology. We need not address the prima facie case issue because it is
clear to us that the district court did not clearly err in crediting the government’s
race-neutral reason for striking Ceasaro.
Before trial, during voir dire, the district court judge read the indictment and
asked the prospective jurors whether they understood it. Prospective juror Ida
Cesareo replied that she did not “understand a lot of the abbreviations.” She told
the judge that she had “lost track of who was who” and that she spoke English as a
second language. She indicated, however, that she could hear and understand the
judge’s questions and that she understood English well enough to follow the
proceedings. Cesareo later explained the she was born in Puerto Rico but had
lived in the United States for more than twenty years and had worked as a certified
nursing assistant. The judge again asked if she felt like she was following the
proceedings and understanding what was going on, and she said that she was.
Upon further inquiries, Cesareo stated that she “had a bankruptcy a year and
a half ago,” and the following exchange occurred:
District Court: Here in this building?
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Cesareo: No.
District Court: Is it closed?
Cesareo: It is close around here.
District Court: I see. Now, is the case closed now? Is it over?
Cesareo: Yes, it is over.
District Court: And when did it get over?
Cesareo: Well, it is—I am still paying bankruptcy.
The government later used a peremptory challenge to strike Cesareo from
the jury. Gainer, Jr. raised a Batson challenge to the strike. The government
responded to that challenge by asserting that it was “striking Ms. Cesareo because
she already expressed to the [c]ourt difficulty in understanding the indictment as
read. And her English spoken in court was broken.”
Although, as the district court noted, other venire members had probably
experienced similar difficulty in making sense of the indictment, Cesareo was the
only juror who expressed confusion over what she described as the
“abbreviations” used in the indictment. The court noted that “her use of the term
‘abbreviations’ was not clear to me. Her pronunciation of the word was not clear
to me. Nor did I understand exactly how the term ‘abbreviations’ applied to what
was in the indictment.”
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The district court noted that prospective juror “Cesareo herself raised
concerns about her understanding, although she receded somewhat from that when
questioned;” that juror “Antonio Latour, born in Cuba . . . remains on the venire,
unchallenged by the United States;” and that there was no “indication certainly in
the behavior of the United States or in the contents of these proceedings to suggest
that [the Batson] objection was meritorious, although the opportunity to make it is
presented and hard, I know, to resist.”
“A district court’s findings regarding whether a peremptory strike was
exercised for a discriminatory reason largely involve credibility determinations
and are therefore entitled to great deference. Thus, we review a district court’s
findings in this respect only for clear error.” United States v. Novaton, 271 F.3d
968, 1001 (11th Cir. 2001) (citation and quotation marks omitted). We are to
accord “great deference” to the court’s finding that the government’s explanation
for the strike was credible. Stewart, 65 F.3d at 925. Here that deference is
unnecessary; there was no error, clear or otherwise. Ms. Cesareo was not fluent in
the English language and she demonstrated language-based difficulty
understanding terms in the indictment and communicating with the court. This
was a banking fraud case. It would be hard enough for jurors proficient in English
to understand the allegations, evidence, and instructions. Under these
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circumstances, the reason the government proffered for striking her was not only
plausible but compelling.
II.
Gainer, Jr. also contends that his Fifth Amendment rights were violated
when the government cross-examined him about what he describes as his post-
arrest silence. Almost three years before he was arrested or indicted, two police
officers and two officials from SouthTrust Bank questioned Gainer, Jr. about his
suspected fraudulent activities. During this meeting, Gainer, Jr. signed a written
statement confessing that he had received a bribe and had committed the acts
underlying the crimes that were later alleged in counts thirteen (conspiracy to
commit bank fraud as an employee of a federally insured bank through
solicitation, demand, and acceptance of commissions or gifts for procuring loans)
and fourteen (receipt of commissions or gifts for procuring a loan as an employee
of a financial institution) of the indictment. When questioned on direct about his
written confession, Gainer, Jr. testified that he was forced to make the statement
and that the police officers interrogating him were “very rough, as far as vocal,
with [him].” He explained that he had agreed to write the statement in order to
avoid being arrested.
On cross-examination the prosecutor asked Gainer, Jr. whether, immediately
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after he made the confession (before he was arrested), he contacted the police to
protest this situation or called his lawyer to report that he had been coerced into
confessing to a federal crime. Gainer, Jr. said that he had not. He also admitted
that when FBI agents contacted him several months later (still before he was
arrested), he did not explain that he had been forced to confess to criminal
activities.
The prosecutor concluded by asking, “And, in fact, the first time that you
ever advised anyone with the United States or Bradenton Police or South Trust
Bank that this had been coerced from you under these horrifying circumstances
was a good year after you’d been indicted for these crimes, is that correct?”
“Yes,” Gainer, Jr. replied.
Then, during closing argument, the prosecutor emphasized that Gainer, Jr.
had not promptly reported to authorities his allegation that he had been forced to
confess to crimes he had not committed. The government reminded the jurors of
the fact that Gainer, Jr. did not assert that he had been coerced to confess “until a
year after he had been indicted in this case” and “that was the first time the
government or SouthTrust ever heard the claim that he was forced or intimidated
into [confessing].”
Gainer, Jr. contends that the district court should have acted to prevent
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questioning about his silence following the indictment and should have stopped
the government from commenting on this testimony during its closing argument.
He also contends that the comments on his post-arrest silence violated his due
process rights and improperly shifted the burden of proof to the defense on counts
thirteen and fourteen of the indictment.
At trial, however, Gainer, Jr. did not object to this line of questioning or to
the prosecutor’s comments in closing argument. Accordingly, our review is only
for plain error. See United States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770,
1776 (1993). Plain error occurs only when the following requirements are met:
(1) the district court committed “error,” (2) the error was plain, and (3) the error
“affect[s] substantial rights.” Id. at 732, 113 S. Ct. at 1776. If all of these criteria
are satisfied, then we should correct the plain error only if it “seriously affect[s]
the fairness, integrity, or public reputation of judicial proceedings.” Id. at 736,
113 S. Ct. at 1779 (citation and quotation marks omitted).
A defendant cannot be questioned about post-arrest silence after he has
asserted his right to remain silent. See Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct.
2240, 2245 (1976) (explaining that Miranda warnings create an implicit assurance
that a defendant’s “silence will carry no penalty”). The reason is that “it would
be fundamentally unfair and a deprivation of due process to allow the arrested
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person’s silence to be used to impeach an explanation subsequently offered at
trial.” Id. It is permissible, however, to question a defendant about his pre-arrest
silence. See Jenkins v. Anderson, 447 U.S. 231, 240, 100 S. Ct. 2124, 2130
(1980).
The prosecutor’s questioning focused primarily on Gainer, Jr.’s pre-arrest
silence and his failure to assert promptly after he confessed that he had been
coerced into doing so. That is a proper basis for impeachment. Those questions
and the argument based on them did not constitute error. See Jenkins, 447 U.S. at
240, 100 S. Ct. at 2130.
The prosecutor’s question about whether the first time Gainer, Jr. notified
the government that his confession was coerced was “a good year after [he had]
been indicted” did refer to a period of time following his arrest (he was arrested
two days after being indicted). Therefore, that question and the reference to the
facts brought out by it was a Doyle violation—assuming, as we will, that Miranda
warnings were given following the arrest. We have held, however, that “[a] Doyle
violation is harmless if the error had no substantial and injurious effect or
influence in determining the jury’s verdict.” United States v. Miller, 255 F.3d
1282, 1285 (11th Cir. 2001) (citations and quotation marks omitted).
This Doyle violation does not amount to plain error because it does not meet
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the third requirement of the plain error test, which is “anything but easy” to
satisfy. United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). To
pass that test, the defendant must show that error “affected the outcome of the
district court’s proceedings.” United States v. Cotton, 535 U. S. 625, 632, 122 S.
Ct. 1781, 1786 (citation and quotation marks omitted).
Most of the prosecutor’s questions concerning Gainer, Jr.’s failure to inform
anyone that his confession was coerced referred to the pre-arrest time period.
Only one question mentioned his silence after his arrest. Given the context of the
questions and the argument based on them, Gainer, Jr. has not met his burden of
“show[ing] that the error actually did make a difference.” Rodriguez, 398 F.3d at
1300.
III.
Finally, Gainer, Jr. and Gainer, Sr. both contend that they were sentenced in
violation of Booker. Each of them made timely Blakely objections, Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), at the time of sentencing. We
review the issue but will reverse only for a harmful error. See United States v.
Paz, 405 F.3d 946, 948 (11th Cir. 2005). The government bears the burden of
demonstrating that any error is harmless. Id.
Applying the guidelines in a mandatory fashion, the district court increased
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Gainer, Jr.’s and Gainer, Sr.’s guideline range based upon facts that were neither
alleged in the indictment nor submitted to the jury for proof beyond a reasonable
doubt. The government concedes that it cannot show that the district court’s
mandatory application of the guidelines was harmless and that Gainer, Sr. and
Gainer, Jr. are entitled to resentencing. We agree.
The convictions of both appellants are AFFIRMED, but the sentence of
each appellant is VACATED, and the cases are REMANDED for resentencing in
compliance with the Booker decision.
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