United States v. Campbell

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 22, 2000
No. 98-5923
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 98-00442-CR-EBD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAMION ANTHONY CAMPBELL,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 22, 2000)

Before COX, GODBOLD and MESKILL*, Circuit Judges.

PER CURIAM:

Damion Anthony Campbell appeals his convictions for importation of cocaine,

*
Honorable Thomas J. Meskill, U.S. Circuit Judge for the Second Circuit, sitting
by designation.
in violation of 21 U.S.C. § 952(a), and possession with intent to distribute cocaine, in

violation of 21 U.S.C. § 841(a). We affirm.

I. Facts1 and Procedural History

Following Campbell’s arrival at Miami International Airport on a flight from

Jamaica, he was required to pass through United States Customs. There, he told a

Customs agent that he had packed his own luggage and that everything in the luggage

belonged to him. The agent searched one of Campbell’s suitcases, found two

packages of cocaine, arrested Campbell, and took him into the enforcement area. A

second agent had observed the search and noted that as Campbell’s suitcase was

opened, Campbell appeared nervous and started looking around for points of exit.

The second agent then searched Campbell’s luggage; during this search, as a pair of

shoes was examined, Campbell commented that nothing would be found in the shoes.

Approximately thirty minutes later, a third Customs agent read Campbell his

Miranda rights; Campbell signed a waiver and agreed to make a statement. The agent

wrote out Campbell’s statement for him, in the third person, and included Campbell’s

comment that no one could have put anything in his suitcase. The agent also inserted

his personal opinion in the statement, commenting that he had told Campbell that

1
The facts are gleaned from the trial transcript.

2
“nobody gives this amount of cocaine to someone they don’t trust.” (R.2 at 60.)

Campbell read the statement, requested a few additions, and signed the revised

statement.

According to the third Customs agent, Campbell did two other things that were

consistent with guilt. First, although Campbell gave the agent the name and

description of the person who was supposed to pick him up at the airport, he refused

to identify the person. Next, while transporting Campbell to jail, the third Customs

agent and his partner discussed a pamphlet that described the penalties for smuggling

drugs into foreign countries. When the third agent told Campbell that the penalty for

smuggling drugs into Iran was death, Campbell responded that it did not pay enough

to smuggle drugs into Iran.

At trial, the principal issue was whether Campbell knew that the cocaine was

in his suitcase before it was discovered by Customs. One defense witness testified

that he had seen another person tampering with Campbell’s luggage during the trip to

the Jamaican airport and that he had told Campbell about this. The other defense

witness, Campbell’s cousin, with whom he normally stayed during his visits to Miami,

testified that the person who was supposed to meet Campbell at the airport telephoned

her, desperately trying to locate Campbell, several times on the day of Campbell’s

arrest.

3
 The jury convicted Campbell on both counts. Campbell appeals, arguing that

the district court erred by admitting the Customs agent’s hearsay opinion contained

in his written, post-arrest statement and by permitting the Government to comment on

his silence, depriving him of his Fifth Amendment right to a fair trial.2

II. Discussion

Because Campbell did not object to these alleged errors at trial, we review only

for plain error. See United States v. De Castro, 113 F.3d 176, 180 (11th Cir. 1997).

To prevail, Campbell must prove three things: (1) an error, (2) that is plain, and (3)

that affects substantial rights. See Jones v. United States, 527 U.S. 373, ___, 119 S.

Ct. 2090, 2102 (1999) (citations omitted); see also Fed. R. Crim. P. 52(b). In order

to “affect substantial rights,” in most cases, the error must “have been prejudicial: It

must have affected the outcome of the district court proceedings.” United States v.

Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777-78 (1993). Moreover, the Supreme

Court has cautioned us to exercise our discretion to correct plain error only if the error

"seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings." Jones, 527 U.S. at ___, 119 S. Ct. at 2102 (citations omitted).

2
Campbell also argues that the Government improperly commented on his failure
to call additional defense witnesses to explain his lack of knowledge that the cocaine was in his
luggage. In response to Campbell’s objection at trial, the district court instructed the jury that
Campbell had a right not to testify and that he had no obligation to put on any evidence. We
conclude that the corrective instruction rendered any potential error on this point harmless.

4
 Campbell’s first contention of error is the admission of and emphasis on the

Customs agent’s opinion. Campbell argues that this hearsay opinion was improperly

admitted as part of Campbell’s post-arrest statement. The Government discussed this

hearsay three times during the agent’s trial testimony and again during closing

argument. During closing, the Government treated the hearsay opinion as if it had

been the agent’s trial testimony. Finally, the trial was extremely short and, according

to Campbell, the evidence of his guilty knowledge was not otherwise overwhelming.

In light of these facts, Campbell contends that the admission of this hearsay opinion

was plain error.

The Government responds that Campbell never objected to the admission of the

opinion or its use by the Government and that the district court’s admission of the

statement was not plain error. The Government also argues that hearsay is not

prejudicial if the declarant is available for cross-examination. See United States v.

Bright, 630 F.2d 804, 815 (5th Cir. 1980) (holding that the admission of a hearsay

statement over objection was not prejudicial because the hearsay problem was

“adequately cured because [the declarant] was the next government witness and thus

was available for cross-examination on that point.”). Thus, the Government contends

that because the Customs agent testified and was available for cross-examination at

trial, no prejudice resulted from the admission of his hearsay statement.

5
 We agree that the admission of the agent’s opinion does not satisfy the plain

error standard. Indeed, we do not think that any of the components of plain error are

present. First, we are unwilling to say that a trial court’s failure to sua sponte redact

a defendant’s statement to remove hearsay is error. And if it is error, it is certainly not

plain; Campbell cites no authority supporting the notion that the trial court’s failure

to sua sponte redact a defendant’s statement to remove hearsay is error. But, even

assuming that the admission was an error that was plain, we cannot say that it affected

Campbell’s substantial rights for three reasons. First, the declarant Customs agent

testified and was cross-examined. Second, the Customs agent could have stated the

same opinion as an expert witness. Third, Campbell’s knowledge that the cocaine was

in his luggage could have been inferred from other evidence presented at trial.

First, Campbell cannot establish prejudice because the Customs agent who

made the hearsay statement was called as a witness and was thoroughly cross-

examined at trial. See Bright, 630 F.2d at 815. The jury heard and understood that

Campbell’s statement had been transcribed, in the third person, by the Customs agent.

The agent acknowledged on the stand that he had inserted his own opinion into

Campbell’s statement. Furthermore, within the written statement, the agent clearly

labeled his opinion as his own, writing, “Agent McKenney explained to the defendant

that nobody gives this amount of cocaine to someone they don’t trust.” (R.2 at 60.)

6
Finally, the agent even admitted that individuals are sometimes unknowing couriers

of illegal drugs. Accordingly, the jury had ample opportunity to understand that the

agent’s opinion was only the agent’s opinion, not an admission of guilty knowledge

by Campbell.

Second, we note that, at the time of trial, Agent McKenney had been a special

agent for Customs for eleven years. His experience may well have qualified him as

an expert under Fed. R. Evid. 702 to state opinions of this kind. Perhaps this is why

Campbell’s trial counsel raised no objection to the admission of the agent’s opinion.

Finally, contrary to Campbell’s contention that the evidence of his guilty

knowledge was not otherwise overwhelming, substantial evidence supported the

inference that Campbell knew the cocaine was in his luggage. Campbell told the

agents that he had packed his own luggage, that everything in the luggage belonged

to him, and that no one else had access to his luggage. A Customs agent, who

observed the initial search of Campbell’s luggage, testified that as Campbell’s suitcase

was opened, Campbell appeared nervous and started looking around for points of exit.

The cocaine was found in one of Campbell’s suitcases. Furthermore, Campbell’s

additional statements that there were no drugs in his shoes and that it did not pay

enough to smuggle drugs into Iran, coupled with his refusal to identify the person who

was picking him up at the airport, support the inference of Campbell’s guilty

7
knowledge. The Customs agent’s statement merely provided cumulative evidence of

Campbell’s knowledge.

In light of this other evidence that Campbell had knowledge of the cocaine, the

context in which the agent’s statement was presented to the jury,3 and the agent’s

experience, we are not convinced that the admission and use of the statement

contributed to Campbell’s conviction.4 Accordingly, we conclude that Campbell has

failed to show the requisite prejudice to satisfy the plain error standard.

We emphasize, however, that our conclusion is not meant to condone the

Customs agent’s conduct in this investigation. It was improper for the agent to

include his personal opinion regarding Campbell’s guilty knowledge in Campbell’s

statement. But Campbell neither objected to the admission of the statement nor

requested its redaction. The other evidence in the case was too substantial to permit

a conclusion that admission of this agent’s opinion seriously affected the fairness of

this trial, and we respectfully decline the dissent’s invitation to create a rule that would

require district courts to independently police the admissibility of hearsay or risk

reversal.

3
Although the dissent takes the Government to task for its use of the agent’s
opinion, hearsay, like any other evidence admitted without objection, can be used for any
purpose and may be the subject of fair comment.
4
We do not agree with the dissent’s position that this evidentiary error somehow
rises to the level of “constitutional error,” an argument not made by Campbell.

8
 Campbell’s second contention of error is that the Government improperly

commented on his silence. Campbell complains that the Government used his silence

as a theme, emphasizing his pre-Miranda silence, his post-Miranda failure to confess,

and his silence in the face of the agent’s comment. According to Campbell, this

prosecutorial misconduct deprived him of his due process right to a fair trial.

Campbell concedes that the Government can use pre-Miranda silence to

impeach a defendant. See Jenkins v. Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124,

2129-30 (1980). In the present case, however, Campbell did not testify, and he argues

that, therefore, the Government could not have permissibly used his pre-Miranda

silence. The Government responds that the Eleventh Circuit has noted that a

prosecutor may, without restrictions, comment on a defendant’s pre-arrest, pre-

Miranda silence. See United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991);

see also United States v. Simon, 964 F.2d 1082, 1086 n.* (11th Cir. 1992) (“In Rivera,

we held that ‘the government may comment on a defendant's silence if it occurred

prior to the time that he is arrested and given his Miranda warnings.’” ). In turn,

Campbell contends that Rivera, which cited only Jenkins in support of its broad use

of pre-Miranda silence, was wrong. Fortunately, we need not sort out this confusion.

In the present case, given Rivera, any error in the admission of Campbell’s pre-

Miranda silence was not plain. See United States v. Humphrey, 164 F.3d 585, 588

9
(11th Cir. 1999) (“A plain error is an error that is ‘obvious’ and is ‘clear under current

law.’”) (citation omitted).

Finally, Campbell argues that the Government improperly commented on his

post-Miranda silence. Campbell complains that, in closing, the Government

highlighted his failure to deny ownership or knowledge of the cocaine at the Customs

office. He also contends that if the Customs agent had actually interrogated him

instead of merely implying his guilt, he would have invoked his right to remain silent.

The Government argues that it did not improperly comment on Campbell’s post-

Miranda silence, as Campbell waived his right to remain silent and made statements

that omitted (and, therefore, were inconsistent with) the defense offered at trial. We

conclude that because the Government simply made explicit an inference that the jury

could have drawn from the evidence, Campbell has not shown that his substantial

rights were affected. See United States v. Smith, 700 F.2d 627, 633-34 (11th Cir.

1983) (noting that a lawyer in closing argument has the right to state his contention

as to the conclusions that the jury should draw from the evidence).

III. Conclusion

For the foregoing reasons, Campbell’s convictions are

AFFIRMED.

10
GODBOLD, Circuit Judge, dissenting:

The government cannot be proud of this conviction. Governmental misconduct

before and at trial deprived the defendant of due process and of the fair trial to which

he is entitled.

The misconduct had two prongs. A government agent, the prosecution’s

leading witness, manufactured evidence tending to show defendant’s guilt. Then, in

a brief one-day trial, the government, with notice that the evidence was manufactured,

utilized it repeatedly to strike at the heart of defendant’s defense. This misconduct

demands a new trial and this court should require it.

Defendant, a United States citizen, entered the United States at the Miami

Airport, following a flight from Jamaica. Cocaine was discovered in his zippered

suitcase. Consistently he said that he packed his own suitcase, he did not put the

cocaine in his suitcase, it was not his cocaine, and he had no knowledge of it. The

court’s jury instructions clearly set out the issues: Count I, the defendant knowingly

imported cocaine from a place outside the United States; Count II, the defendant

knowingly and willfully possessed cocaine with the intent to distribute it. The trial

judge explained that “knowingly” meant that the act was done voluntarily and

intentionally and not because of mistake or accident. And he explained that

“willfully” meant that the act was committed voluntarily and purposefully with the

11
specific intent to do something that the law forbids. The government inferred

knowledge from the fact of possession. Campbell’s defense was lack of knowledge.

This is a thin case on liability. It barely gets by sufficiency of the evidence

requirements. The defendant did not testify but submitted evidence supporting his

defense that without his knowledge someone had placed the cocaine in his suitcase

and made him an unwitting courier.

I. The manufacture of evidence

After Campbell was arrested and given a Miranda warning he made a voluntary

statement. It did not follow the usual form of a suspect’s writing what he chooses to

say. Instead Customs Agent McKenney wrote down in third party form what he said

Campbell had stated orally to him. According to McKenney, Campbell asked him

(McKenney) to write for him. In the middle of McKenney’s written statement

describing what Campbell had said to him, McKenney improperly inserted his own

volunteered statement expressing his opinion that Campbell necessarily had

knowledge of the cocaine. Speaking as a purported expert and departing from his

undertaking to record what Campbell said, McKenney inserted this:

Agent McKenney explained to the defendant that nobody gives
this amount of cocaine to someone that they don’t trust. (R.2, p. 60).

In short, he inferred from the amount of the cocaine (approximately one-half kilo) that

someone had entrusted it to Campbell and, because it was entrusted to Campbell he

12
necessarily had knowledge of it. This opinion – that amount equals entrustment and

entrustment equals knowledge – became the core of the prosecution’s case. When

McKenney inserted his opinion into Campbell’s statement there was no evidence that

Campbell had been entrusted with the cocaine. It was egregiously improper for the

agent to include in Campbell’s statement his own opinion that lack of knowledge, the

critical basis of Campbell’s defense, was without merit. This manufacture of evidence

was no less egregious than police manufacture of evidence by planting a “throw

down” gun at the scene of a crime or forging a confession. In fact it was arguably

more egregious because Campbell had asked McKenney to be the scribe for his

statement, surely expecting that McKenney would perform the task as requested, and

McKenney had abused that trust.

In this court the government has made no real attempt to explain or defend

McKenney’s misconduct in manufacturing evidence. Its lame explanation that

McKenney was just reacting with a parenthetical response to what Campbell had said,

and was trying to prompt Campbell to tell the truth, deserves no response.

13
 II. Use of the manufactured evidence at trial

Here is what happened at trial. McKenney was the government’s representative

at the counsel table. He testified in the government’s case in chief, following

testimony of the agents who had discovered cocaine in Campbell’s suitcase. He

identified the written statement signed by Campbell, and the government introduced

it. (R.2, 58). The prosecutor then had him read the full statement to the jury on the

ground, the prosecutor said, “For those of us who can’t read your writing.” (R.2, 58).

These steps enabled the government to bring McKenney’s statement into evidence

without the usual predicates that are required to give validity to opinion evidence and

to emphasize it by having the government’s representative at trial read it aloud.

Introducing Campbell’s statement, with McKenney’s statement included, and having

him read it to the jury, were only the opening guns. The prosecutor then referred to

McKenney’s interjected comment and, as the government describes in its brief, the

prosecutor “further elucidated the matter.” This colloquy followed:

Q. . . . What, if anything, did you explain to the
defendant?

A: At this time, I explained to defendant that nobody
gives this amount of cocaine to someone they don’t
trust.

Q: And did you put this into the written statement that
the defendant signed?

14
 A. Yes, I did. (R.2, 60).

The prosecutor referred to McKenney’s statement a fourth time by having him

re-read his interjected statement:

Q: Would you please read that part of the statement
that reflects that conversation?

A: “Agent McKenney explained to the defendant that
nobody gives this amount of cocaine to someone
that they don’t trust.” (R.2, 60).

There followed four questions and answers concerning the amount of money

that defendant had in is possession and a question concerning where defendant was

to stay in Florida and who was to pick him up at the airport. The following colloquy

then occurred, the fifth reference to McKenney’s statement. This time McKenney

added a new volunteered statement directed to the basis for his opinion as an expert.

B: What, if anything, did you ask the defendant
about this individual who was supposed to
pick him up, Sidney Bourne?

A: That’s when I went back to the statement
that nobody gives -- in my experience
working in the airport, nobody gives that
amount of cocaine to someone that they
don’t trust. (R.2, 61).

The prosecution got in its sixth lick in oral argument to the jury. The

prosecutor told the jury:

Ladies and gentlemen, the defendant’s own

15
 statements would indicate he knew that the cocaine was in
his luggage. As the agent testified, you don’t trust a half
kilo of cocaine to someone that you don’t know. (R.2, 125).

The majority acknowledge that “During closing, the Government treated the hearsay

opinion [of McKenney] as if it had been the agent’s trial testimony.”

At no point did the prosecutor suggest that the statement be redacted to

remove McKenney’s inserted remark.

Campbell did not testify. But he submitted evidence supporting his lack of

knowledge defense. Donald Parker, an electrician whose place of business in

Jamaica is close to Campbell’s, testified that he drove Campbell to the Jamaican

airport about two hours distant from where Campbell lived. Parker’s vehicle was

a pick-up truck with a camper top. On the way Campbell asked Parker to stop at the

home of Sidney Bourne, Campbell’s cousin, to pick up an engine block to be

repaired in the United States. Sidney’s brother, Alden, carried the engine block out

of the house, accompanied by an unknown person. The engine block was placed in

the back of the truck where Campbell’s luggage had been placed. Campbell sat in

the passenger seat of the cab, and the two passengers sat in the back of the truck. On

the way to the airport the unknown person was dropped off at his request. Parker,

Campbell and Alden Bourne continued, with Alden sitting in the back of the truck.

Parker, the driver, noticed that Campbell’s luggage had been opened and a pair of

16
jeans had been pulled out. He told Campbell what he had seen. Campbell looked

through the window in the back of the cab and observed that he did not see the

suitcase opened and that it was closed.

Campbell carried the engine block to Miami along with his suitcase. Campbell

was to be met at the airport in Miami by Sidney Bourne, and he was to go to the

home of a female relative with whom he stayed whenever he was in Miami. When

Campbell was arrested he gave the Customs officers Sidney Bourne’s name and

description. However, he declined to point him out to the officers.

The jury could infer from the evidence that Campbell was the victim of a

scheme pursuant to which, without his knowledge, Alden Bourne, or the unidentified

third person, opened the zippered suitcase, wrapped the cocaine in the jeans, and

slipped the package back into the suitcase. It could infer that Sidney Bourne was to

meet Campbell at the Miami airport and extract the cocaine from the suitcase

without Campbell’s knowledge.

McKenney’s inserted opinion was only one sentence. But it went to the heart

of Campbell’s defense. It had persuasive power because McKenney was the senior

Customs agent and had been called to take over the investigation after the cocaine

was discovered. At trial he sat at the counsel table. The most compelling evidence

of the importance of his statement is the government’s repeated use of it and

17
emphasis of it.

The government’s actions at trial are no less egregious than the manufacture

of evidence. This is not a case where someone blurted out a surprise remark. The

prosecutor acted deliberately. She had possession of the statement and surely knew

from its face that it was tainted. After introducing the document she had McKenney

read it to the jury on the premise of poor handwriting. Then, as the case proceeded,

all the way through closing argument, she repeatedly hammered home McKenney’s

statement of his opinion. A simple motion to redact would have cured the taint, but

she made no motion and, to the contrary, used the tainted remark for the upmost

benefit.

The government’s justifications for use of the tainted statement at trial are no

more convincing then the excuses for manufacturing evidence. The government

says it was “impeaching a defense.” But McKenney’s statement was introduced in

the government’s case-in-chief. The government introduced a largely exculpatory

statement then sought to impeach its exculpatory content by McKenney’s inserted

remark. In U.S. v. Crutchfield, 26 F.3d 1098 (11th Cir. 1994) the prosecutor

attempted to justify improper questioning of a witness by stating that he was

“anticipating” that defense counsel would use the subject matter of the question in

an effort to impeach the witness. He claimed to have introduced the substance of the

18
message to “draw the sting” from this anticipated attack. The court struck the

testimony, gave a curative instruction, and warned the prosecutor to be more careful

of what he brought up “in anticipation of a defense.”

III. The decision of this court

This court errs in its treatment of the manufacture of evidence and the use of

that evidence at trial with knowledge of its taint. As to manufacture of evidence, the

court passes over McKenney’s misconduct in two sentences, one saying that he

shouldn’t have done it and the second saying this court doesn’t condone it. This

powderpuff treatment trivializes the wrong by an experienced agent of our

government. It disposes of use of the manufactured evidence at trial on the ground

that since defendant did not object or ask for redaction the plain error rule applies

and the statement really didn’t hurt Campbell very much. The court does not even

recognize the prosecutor’s wrong in repeatedly making use of what she knew to be

manufactured evidence. Instead the court excuses prosecutorial misconduct (n. 3)

by saying that since the evidence was admitted without objection it could be used

for any purpose. Surely this procedural rule cannot immunize the government from

the wrong of using evidence that it knows is tainted.

This court does not adequately treat an error of constitutional dimension. It

minimizes the governmental misconduct. It does not recognize that government

19
manufacture of evidence plus subsequent use of it at trial with knowledge of its taint

is a constitutional wrong. It does not utilize the correct standards for judging a

constitutional wrong. It does not consider whether the overall government

misconduct is harmless beyond a reasonable doubt.

IV. Standards governing constitutional errors

There are some constitutional errors that cannot be categorized as harmless

error. Chapman v. California, 386 U.S. 18 (1967) noted three: using a coerced

confession against a defendant in a criminal trial, depriving a defendant of counsel,

and trying a defendant before a biased judge. Later cases have added other

constitutional errors not subject to harmless error: The right to self-representation

at trial, McKashie v. Wiggins, 465 U.S. 168, 177-78 (1984); failure to instruct a

jury on the reasonable doubt standard, Jackson v. Virginia, 443 U.S. 307, 320 (n. 14)

(1979); unlawful exclusion of members of the defendant’s race from the grand jury

that indicted him, despite overwhelming evidence of guilt, Vasquez v. Hillery, 474

U.S. 254 (1986); denial of public trial, Waller v. Georgia, 467 U.S. 39, 49 (1984).

See also Tumey v. Ohio 273 U.S. 510, 535 (1927) (trial before a judge with a

financial interest in the outcome); Sparf v. U.S., 156 U.S. 51, 105 (1895) (erroneous

entry of a judgment of conviction by the judge or a direction to the jury to convict,

directing the jury to do so in a criminal trial). But see Arizona v. Fulminante, 499

20
 U.S. 279 (1991) (the Supreme Court, in a five-four decision, withdrew from this

class of cases in which constitutional error cannot be considered as harmless error

the use of a coerced confession).

We should hold that government manufacture of incriminating evidence that

is subsequently introduced at trial with knowledge that it has been manufactured is

a constitutional error and not subject to the harmless error rule.1

If, however, the manufacture and knowing use of such tainted evidence, combined

together, is subject to the harmless error rule, that is not the end of the matter.

Chapman requires that the error must be harmless beyond reasonable doubt.

This court and the Supreme Court have applied Chapman in numerous

contexts, with many different characterizations of what “harmless error beyond

reasonable doubt” means. “The court must be convinced that error did not

contribute to the defendant’s conviction.” U.S. v. Burgess, 175 F.3d 126 (11th Cir.

1999). In Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) the test was “whether the

guilty verdict actually rendered in this trial was surely unattributable to the error.”

In Cape v. Frances we phrased the test in this fashion: “We must consider ‘whether,

1
I do not need to address in this case whether the government’s use of any
manufactured evidence, whatever the source, with knowledge of its taint, is a constitutional
violation. In this case the constitutional error is double barreled, manufacture and use.

21
absent the so-determined unconstitutional effect, the evidence remains not only

sufficient to support the verdict but so outstanding as to establish the guilt of the

accused beyond reasonable doubt.’” (741 F.2d 1287, 1294 (11th Cir. 1994) (quoting

Harryman v. Estelle), 616 F.2d 870, 875 (5th Cir. (en banc), cert. denied, 449 U.S.

860 (1980)).

In many Chapman-based cases repetition of the error is determinative or

highly significant. Hill v. Turpin, 135 F.3d 1411 (11th Cir. 1998) (several

references to defendant’s post-Miranda request for counsel and assertion of right to

silence); U.S. v. Tenorio, 69 F.3d 1103, 1106-07 (11th Cir. 1995) (repeated

references to post-Miranda silence).

In U.S. v. Mills, 138 F.3d 928, 939-40 (11th Cir. 1998), Judge Cox set out and

applied five factors that I apply to this case. (1) How important was the witness’

testimony to the prosecution’s case? It was vital. (2) Was other testimony

cumulative? No. (3) Was there corroborating evidence to the testimony in

question? No. (4) What was the extent of cross-examination? Minimal or none on

the subject matter. (5) What was the overall strength of the prosecution’s case?

Very thin.

The evidence in this case does not meet the Chapman test. The evidence is

not overwhelming. The prosecution repeatedly utilized government-tainted evidence

22
 with knowledge of the taint.

V. Departure from our standards concerning prosecutorial misconduct

For at least half a century this court, and its predecessor the Fifth Circuit, have

dealt head on with prosecutorial misconduct and its consequences. We have taken

to heart the often-quoted language of the Supreme Court in Berger v. U.S.:

A United States district attorney carries a double burden.
He owes an obligation to the government, just as any
attorney owes an obligation to his client, to conduct his
case zealously. But he must remember also that he is the
representative of a government dedicated to fairness and
equal justice to all and, in this respect, he owes a heavy
obligation to the accused. Such representation imposes an
overriding obligation of fairness so important that Anglo-
American criminal law rests on the foundation: better the
guilty escape than the innocent suffer. In this case zeal
outran fairness. The argument of the United States
attorney in the district court was improper, prejudicial, and
constituted reversible error.

205 U.S. 78, 88 (1935).

In Handford v. U.S., 249 F.2d 295 (5th Cir. 1957) the charge was illegal

possession of nontax paid whiskey. The critical issue was whether the defendant had

dominion and control. As in the present cases, the evidence was “far from

conclusive” and the court held that the jury might have found that defendant did not

in fact have such dominion and control as to constitute possession. The prosecutor

had appealed to racial prejudice and argued that “too many of the prosecutor’s

23
friends’ children got run over up and down the highways.” Quoting from Berger the

Fifth Circuit reversed the conviction because “zeal outran fairness.”

In Dunn v. U.S., 307 F.2d 883, 885 (5th Cir. 1962) one of the grounds for

reversal was an inflammatory opening statement by the prosecutor. The court

reversed, relying upon Handford.

In U.S. v. Eason, 920 F.2d 731 (11th Cir. 1990), the government, while cross-

examining the defendant, introduced evidence that the defendant’s father-in-law had

been convicted of similar offense. Prosecutorial use of the offensive material was

similar to that in this case.

The problem confronting [the court] was not the result of
inadvertence; no witness volunteered or “blurted out” the
fact that Eason Sr. had been convicted. The government
deliberately introduced Eason, Sr’s conviction.

Id. at 734. The court reversed. It “felt obligated” to remind the United States

attorneys of their duty in a criminal prosecution and quoted the language from

Berger. Id. at 735-36.

Some cases of improper conduct have not been reversed because there was

overwhelming evidence of defendant’s guilt and, in some cases, a curative instruction

as well. See e.g., U.S. v. Alexander, 835 F.2d 1406, 1410 (11th Cir. 1988)

(overwhelming evidence of defendant’s guilt); U.S. v. Cotton, 770 F.2d 940, 948

(11th Cir. 1985) (jury instruction given and evidence of defendant’s guilt

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overwhelming); U.S. v. Tutt, 704 F.2d 1567, 1569-70 (11th Cir. 1983) (prosecutorial

misconduct by single reference in opening statement, curative instruction,

identification of defendant by several witnesses, and overwhelming evidence); U.S.

v. Nooks, 446 F.2d 1283, 1289 (5th Cir. 1971) (circumstances reeking of guilt). The

evidence in the instant case was not overwhelming, and no instruction was given

concerning McKenney’s statement of opinion.

This court departs from the policies of the past concerning governmental

misconduct. The government agency and its agents are responsible that evidence is

not manufactured. It is the prosecutor’s responsibility that evidence known to have

been manufactured will not be used. It is she who is duty bound to clean up the

evidence by asking for redaction. The trial court must be alert that manufactured

evidence is not used. The decision in this case shifts to defense counsel the total

onus for infection of a criminal trial by governmental conduct that he neither caused

nor contributed to. It is wrong that agencies of government are permitted to seek and

gain advantage from their misconduct and suffer no consequences. It is wrong that

sole responsibility for a tainted trial is shifted to defense counsel because he was not

a sufficient gatekeeper to prevent the use of evidence that should have been neither

created nor used.

This is a shabby case. Our government can do better then this. It would have

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elevated itself by confessing error, thereby sending a signal to its agent that it

demands rectitude from those who gather evidence for our judicial system and those

who use it. Absent that response this court should say that what occurrence in this

case was wrong, and that the responsibility for it should not be shifted to defense

counsel but should reverse and remand for the fair trial to which defendant is entitled.

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