United States Court of Appeals,
Eleventh Circuit.
No. 95-4978.
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Donald DODD a.k.a. "Long Danny", Defendant-Appellant.
May 7, 1997.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-304-CR-FAM), Federico A. Moreno,
Judge.
Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and FAY,
Senior Circuit Judge.
PER CURIAM:
Michael Dodd appeals his conviction and 360-month sentence for
violations of Title 21 U.S.C. §§ 848 (continuing criminal
enterprise), 841(a)(1) (conspiracy to possess marijuana with intent
to distribute) and Title 18 U.S.C. 1546(a) (possession of a
passport obtained by false statement). On appeal Dodd argues that
the prosecutor improperly commented on his post-Miranda1 silence
and that a government witness's cross-examination testimony that he
had been incarcerated with Dodd warranted a mistrial. As for his
sentence, Dodd argues that he is entitled to a two-level reduction
for acceptance of responsibility under § 3E1.1 of the United States
Sentencing Guidelines ("U.S.S.G").
The events in the instant case were set in motion with the
arrest of Audley Antonio and Ainsley Brown in Mississippi for
transporting more than $500,000 in United States currency hidden in
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966).
two vehicles. Antonio told the FBI that the money was to be
delivered to Manley Cargill, a source for a large Jamaican drug
ring in New York City and that Dodd was one of its leaders.
At trial, Dodd defended on the basis of the statute of
limitations. His lawyer admitted that Dodd dealt marijuana
previously, but argued that there was no evidence of a criminal act
after June 25, 1988.2 In response, the Government called Antonio
who testified that he had worked for Dodd from 1986 to 1990
purchasing and transporting marijuana and cocaine. The Government
also called FBI Agent Andrew Bland who testified that upon Dodd's
arrest Dodd stated five or six times: "If I have to go to jail for
the weed, that is OK, but not for cocaine." Commenting on this
statement during rebuttal, the prosecutor stated,
Finally, [Dodd] knew he had made the statements to Agent
Bland, and you know that the defendant did not tell Agent
Bland that he was a drug dealer up until the statute of
limitations. He did not tell Agent Bland, "I used to be a
drug dealer, but then I quit." He said, "If I have to go to
jail for the weed, that's okay, but I won't go to jail for the
cocaine."
Defense counsel moved for a mistrial, arguing that the prosecutor
improperly commented on Dodd's right to remain silent. The
district court denied the motion, finding that the comment was not
a remark on Dodd's right to remain silent, but referred only to
"the context" of Dodd's statement upon arrest.
We review a district court's refusal to declare a mistrial
based on a prosecutor's comment regarding a defendant's right to
2
The jury was properly instructed that any criminal activity
prior to June 25, 1988, which is five years prior to the date the
indictment was returned, was protected by the statute of
limitations.
remain silent for abuse of discretion. United States v. Delgado,
56 F.3d 1357 (11th Cir.1995), cert. denied, --- U.S. ----, 116
S.Ct. 713, 133 L.Ed.2d 667 (1996). A comment is deemed to be a
reference to a defendant's silence if it was the prosecutor's
manifest intention to refer to the defendant's silence or if it was
of such a character that the jury would "naturally and necessarily"
understand it to be a comment on a defendant's silence. United
States v. Rosenthal, 793 F.2d 1214, 1243 (11th Cir.), opinion
modified in part by, 801 F.2d 378 (11th Cir.1986), cert. denied,
480 U.S. 919, 107 S.Ct. 1377, 94 L.Ed.2d 692 (1987). It is well
established that a prosecutor cannot comment on a defendant's
post-Miranda silence to impeach exculpatory testimony on the ground
that the defendant did not explain his conduct at the time of his
arrest. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91
(1976). In Doyle, defendants testified at trial to exculpatory
explanations for their participation in a drug transaction. Id. at
613, 96 S.Ct. at 2242-43. On cross-examination, the prosecutor
impeached their testimony by asking why they had not offered this
information upon arrest. Id. The Supreme Court held that this
questioning violated the Due Process Clause of the Fourteenth
Amendment because Miranda warnings contain implicit assurance that
silence will carry no penalty. Id. at 617-18, 96 S.Ct. at 2244-45.
Following this reasoning, the Court, in Anderson v. Charles, 447
U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980) held that Doyle is
inapplicable where the prosecutor's comments "merely inquire[ ]
into prior inconsistent statements." Anderson, 447 U.S. at 408,
100 S.Ct. at 2182. Such comments, the Court explained, "make[ ] no
unfair use of silence because a defendant who voluntarily speaks
after receiving Miranda warnings has not been induced to remain
silent. As to the subject matter of his statements, the defendant
has not remained silent at all." Id. (internal citations omitted).
Thus, the question before us is whether the prosecutor's
comment addressed Dodd's failure to offer exculpatory evidence upon
arrest, or simply addressed the context of Dodd's statement on
arrest. We are persuaded that the district court did not abuse its
discretion in finding the latter. Dodd argues that the prosecutor
commented on his post-Miranda silence, referring to what Dodd
failed to say upon arrest to impeach his exculpatory statute of
limitations defense. However, as the Supreme Court noted in
Anderson, "Each of two inconsistent descriptions of events may be
said to involve "silence' insofar as it omits facts included in the
other version. But Doyle does not require any such formalistic
understanding of "silence'...." Anderson, 447 U.S. at 409, 100
S.Ct. at 2182. The prosecutor's comments here can reasonably be
read to refer to the inconsistency between Dodd's defense and his
post-Miranda statement. Dodd claimed at trial that he had not
dealt in marijuana in the five years before his arrest. However,
his direct statement to Agent Bland, that he would go to jail for
marijuana, could clearly raise the inference that his marijuana
dealing was continuous. Thus, the district court's conclusion that
it was not the prosecutor's manifest intent to refer to Dodd's
silence and that the comment was not of such a character that would
lead the jury to "naturally and necessarily" understand it to be a
comment on Dodd's silence is not an abuse of discretion.
Dodd also contends that the trial court erred in refusing to
grant a mistrial based on Antonio's statement during
cross-examination that he had been incarcerated with Dodd. In
response to defense counsel's question concerning a trip to
England, Antonio replied,
It was planned. [Dodd] planned that. I must come up to him.
He gave me a number to call his friend Ever, who was working
for him at the time in Florida. So, it was an agreement to
come up, show it to him. I may have come up to the United
States or traveled, but not at that time because [Dodd] and me
just came out of prison. I didn't have the resources or
anything.
Defense counsel moved for a mistrial, arguing that Antonio's
statement concerning jail prejudiced Dodd. The court denied the
motion and gave the jury the following curative instruction:
Members of the jury, there has been some confusion. As I was
saying, ladies and gentlemen of the jury, there has been some
confusion about the answer the witness, Mr. Antonio, gave to
Mr. Harris, the defense attorney, to his last question. The
defendant, Michael Dodd, was not in jail. There is no dispute
as to that and you are to accept that. Any problems with that
instruction and I just wanted to make sure that you all
understood that.
Where the district court gives a curative instruction, the
district court's refusal to declare a mistrial will not be
overturned unless the evidence is so highly prejudicial as to be
incurable. United States v. Funt, 896 F.2d 1288, 1295 (11th
Cir.1990). This Circuit has stated that the "mere utterance of the
word [jail, prison, or arrest] does not, without regard to context
or circumstances, constitute reversible error per se." United
States v. Villabona-Garnica, 63 F.3d 1051, 1057 (11th Cir.1995),
cert. denied, --- U.S. ----, ----, 116 S.Ct. 1341, 1366, 134
L.Ed.2d 490, 532 (1996). We find no reversible error in the denial
of Dodd's motion for mistrial under the circumstances presented
here.
Finally, we also affirm the district court's denial of a
two-level reduction for acceptance of responsibility under the
sentencing guidelines. U.S.S.G. § 3E1.1. At sentencing, Dodd
argued that he was entitled to the reduction since he admitted to
being involved with marijuana before the statute of limitation
period. The district court found that Dodd did not qualify for the
reduction based on Dodd's continued denial of factual guilt. This
Court reviews the district court's determination of acceptance of
responsibility only for clear error. United States v. Arguedas, 86
F.3d 1054, 1059 (11th Cir.1996). Under the circumstances of this
case, we do not find that the district court clearly erred in
denying a two-level reduction for acceptance of responsibility.
Accordingly, we AFFIRM Dodd's conviction and sentence.