In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3010
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A DRIAN D. H ARPER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-CR-307—Lynn Adelman, Judge.
A RGUED O CTOBER 27, 2011—D ECIDED D ECEMBER 6, 2011
Before F LAUM, K ANNE, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Adrian Harper was charged and
convicted of being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). During
his closing argument, Harper’s lawyer told the jury
that “trials are about the truth.” In its rebuttal, the gov-
ernment picked up on that theme and also asked the
jury to “look for the truth.” Harper now asserts that it
was a mistake to tell the jury that it had to ferret out the
2 No. 10-3010
truth, because this had the effect of relieving the gov-
ernment of its burden to prove guilt beyond a rea-
sonable doubt. On this record, however, we find no
reversible error, and we therefore affirm Harper’s con-
viction.
I
At approximately 1:45 in the morning on September 17,
2008, Milwaukee Police Department Officers Hopgood
and Emmons heard five gunshots outside Questions,
a popular nightclub. Emmons immediately noticed
smoke rising out of the passenger side of a black pickup
truck, which quickly sped away. Emmons pursued the
truck and called for backup. Several police responded;
along with Emmons and Hopgood, they stopped the
truck and ordered the driver, Terrence Harper (whom
we will call Terrence, to avoid confusion), to get out of
the truck. Terrence, who is Harper’s cousin, complied
and was taken into custody.
The officers then ordered Harper, who was seated on
the passenger side, to get out of the truck. As Harper
did so, Hopgood heard two shell casings fall to the
ground. Once he was out, the police inspected the vehicle
and found a number of notable items, including a .357
revolver. The gun’s handle faced the passenger side
of the vehicle while the muzzle was pointed toward the
driver’s side, strongly suggesting that the gun had
been set down by the passenger. Moreover, the gun
was hot and thus probably had been fired recently.
Finally, the police recovered several used casings from
No. 10-3010 3
the passenger side of the vehicle, where Harper had
been sitting.
This all led to charges against Harper for being a
felon in possession of a firearm. The parties stipulated
to Harper’s prior felony conviction and to the gun’s
prior travel in interstate commerce. At the conclusion
of the trial, the government stated in its closing argument
that there could be “no reasonable doubt that anybody
but the defendant possessed that gun.” In response,
Harper’s attorney insisted that “trials are about truth.”
Given the circumstantial nature of the government’s
evidence, the lawyer continued, the prosecution had
not proved Harper’s possession of the gun with the
“certainty” required to convict. In rebuttal, the govern-
ment followed up on that suggestion with the state-
ment that “[a] trial is the search for the truth,” not a
“search for doubt,” and it argued that it had “proven . . .
beyond a reasonable doubt what the truth is.”At a num-
ber of other points, both the government and defense
counsel referred to the reasonable doubt standard, and
the district court instructed the jury both that the state-
ments and arguments of counsel were not to be taken
as evidence and that the government bore the burden
of proof beyond a reasonable doubt. Even so, Harper
believes that these references to a search for the truth
amounted to an erroneous instruction on the rea-
sonable doubt standard, that this constituted structural
error, and that he is entitled to a new trial.
4 No. 10-3010
II
Because Harper failed to object to the remarks alluding
to “the truth” during the trial, our review is only for
plain error. United States v. Olano, 507 U.S. 725, 731 (1993);
United States v. Stark, 507 F.3d 512, 520 (7th Cir. 2007).
For Harper to prevail, he must show that the court’s
failure to do anything about these statements was (1) an
error, that is (2) plain, and that (3) affected his sub-
stantial rights. Olano, 507 U.S. at 732.
A
Harper alleges that the attorneys’ remarks regarding
truth amounted to a de facto impermissible instruction
on the reasonable doubt standard. He argues that by
telling the jurors to “search for the truth,” the attorneys
asked the jurors to make a binary choice between true
and not true, instead of making it clear that their task
was to decide whether the prosecution demonstrated
beyond a reasonable doubt that its version was the
correct one. He asserts that the “truth” language might
have been misunderstood by the jurors as an invitation
to convict by a mere preponderance of the evidence.
We do not find any error in the attorneys’ closing
statements, much less plain error. There was nothing
wrong with referring to trials as “searches for truth”: As
we commented at oral argument, trials are searches for
the truth; the burden of proof is just a device to allocate
the risk of error between the parties. Indeed, both
the Supreme Court and this court have repeatedly
No. 10-3010 5
noted that criminal jury trials serve an important
“truth-seeking” function. E.g., United States v. Mezzanatto,
513 U.S. 196, 204-05 (1995); Jones v. Basinger, 635 F.3d
1030, 1040-41 (7th Cir. 2011). The attorneys here did no
more than to repeat that uncontroversial proposition.
Nor did the attorneys’ remarks restate the govern-
ment’s burden of proof. To the contrary, both attorneys
emphasized that the prosecution was required to prove
its case beyond a reasonable doubt. For example, the
government argued in rebuttal that it had “proven . . .
beyond a reasonable doubt what the truth is.” In total,
counsel for both sides referred to the reasonable
doubt standard no less than eleven times during
their opening and closing statements.
Most importantly, Harper is wrong to equate argu-
ments of counsel with instructions from the court. It is
telling that he offers no criticism of the judge’s handling
of the reasonable doubt burden. After the attorneys
gave their closing arguments, the court issued a proper
jury instruction on the reasonable doubt standard. Such
instructions from the court carry more weight with
jurors than do arguments made by attorneys, Boyde v.
California, 494 U.S. 370, 384 (1990), and here, we presume
that the court’s proper instruction ensured that the
jury applied the correct standard.
B
Although we find that the district court committed
no error, we proceed through the rest of the plain error
6 No. 10-3010
analysis for completeness. Even if allowing the attorneys
to make closing statements that asked the jury to search
for the truth left some space for misunderstanding, any
error that arose was not plain. Error is plain when it
would be “clear” or “obvious” to the district court. Olano,
507 U.S. at 734. Here, it was far from evident that there
was any impropriety in the attorneys’ closing arguments.
As we have already discussed, the Supreme Court and
this court have emphasized the important truth-seeking
role of trials. E.g., Mezzanatto, 513 U.S. at 204-05; Basinger,
635 F.3d at 1040-41. We ourselves in the past have
declined to condemn a prosecutor’s statement that a
jury’s “job is not to search for doubt, but to search for
the truth.” United States v. Anderson, 303 F.3d 847, 857 (7th
Cir. 2002). Even if we grant that such statements should
be made with care, and that parties would be well
advised not to risk confusion with the reasonable doubt
standard, the only thing that seems plain is that courts
have not recognized any absolute prohibitions against
referring to the truth in an argument. Thus, even if it
was error to allow the attorneys to ask the jury to search
for the truth in the way they did here, any such error
was not obvious to the district court.
C
Finally, we are satisfied that Harper’s substantial rights
were not affected by the attorneys’ closing arguments.
Harper suggests that Sullivan v. Louisiana, 508 U.S. 275,
279 (1993), which ruled that an erroneous instruction
from the court on the reasonable doubt standard is a
No. 10-3010 7
structural trial error and thus never harmless, should
apply to an attorney’s misstatements of the govern-
ment’s burden of proof. As we already have indicated,
we reject the invitation to extend Sullivan from court
instructions to attorney arguments. Jurors understand
attorneys’ statements to be “matters of argument,” while
they view instructions from the court as “definitive
and binding statements of the law.” Boyde, 494 U.S. at
384. We ourselves would err if we equated the two.
Harper alternately argues that the attorneys’ remarks
regarding the truth require that he receive a new trial
under Darden v. Wainwright, 477 U.S. 168, 181-82 (1986).
Darden involved a state prisoner’s argument that his
due process rights were violated by the prosecutor’s
improper closing arguments. By invoking Darden, Harper
is forfeiting any argument that would be cognizable in
a direct criminal appeal but not in the special setting of
collateral relief from a state-court judgment. In order
to show a violation of his due process rights, Harper
must establish that the attorneys’ closing arguments
were improper and prejudicial. Id. Analyzing prejudice
under Darden requires the consideration of six factors:
(1) whether the prosecutor misstated the evidence,
(2) whether the remarks implicate specific rights of
the accused, (3) whether the defense invited the re-
sponse, (4) the trial court’s instructions, (5) the weight
of the evidence against the defendant, and (6) the
defendant’s opportunity to rebut.
Howard v. Gramley, 225 F.3d 784, 793 (7th Cir. 2000) (citing
Darden, 477 U.S. at 181-82). As applied in the plain error
8 No. 10-3010
context, these factors “must establish not only that the
[statements] denied [the defendant] a fair trial but also
that the outcome of the proceedings would have been
different absent the [statements].” United States v. Olson,
450 F.3d 655, 674 (7th Cir. 2006).
We will assume for the sake of argument only that
the first two factors support Harper. The remaining
factors, however, favor the government—a fact that
demonstrates yet again the limited utility at the
appellate level of these kinds of multifactor tests,
however useful they may be as checklists for the trial
judges. Harper invited the misstatement because it was
his own lawyer who made the first reference to the
truth. Second, by failing to object, Harper bypassed
any opportunity to rebut the statements. Most impor-
tantly, from our standpoint, the district court provided
a proper jury instruction on the reasonable doubt
standard and the overwhelming weight of the evidence
was against Harper. Gramley, 225 F.3d at 793 (“[T]he
most important of the Darden factors is the weight of
the evidence against the defendant.”). Smoke was bil-
lowing from the passenger side of the vehicle, where
Harper was seated; Hopgood heard casings fall to the
ground when Harper climbed out of the truck; and
casings were later recovered from that exact spot. The
gun was positioned in a way that indicated that the
passenger, Harper, was the last person to hold it.
Finally, as icing on the cake, the prosecution presented
the testimony of another inmate to whom Harper had
allegedly confessed. On this record, Harper cannot
“establish . . . that the outcome of the proceedings would
No. 10-3010 9
have been different absent the remark[s].” Olson, 450
F.3d at 674.
III
Harper also contends that his conviction violated his
right to due process, because (he asserts) 18 U.S.C. § 922(e)
is unconstitutionally vague. Although he concedes that
this argument has been foreclosed by the Supreme
Court, see, e.g., Sykes v. United States, 131 S. Ct. 2267, 2277
(2011) (finding that § 922(e) “states an intelligible
principle and provides guidance that allows a person to
conform his or her conduct to the law”), he nevertheless
raises the issue to preserve it for further review. We
note, without additional comment, that he has done so
from our point of view. We A FFIRM the judgment of
the district court.
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