United States v. Wilson

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

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No. 97-2122 FILED
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U.S. COURT OF APPEALS
D. C. Docket No. 96-79-CR-T-24B ELEVENTH CIRCUIT
08/13/98
THOMAS K. KAHN
UNITED STATES OF AMERICA, CLERK

Plaintiff-Appellee,

versus

KEVIN WILSON, a.k.a. Clinton Edwards, a.k.a.
Kevin Edwards, a.k.a. Keevie,

Defendant-Appellant.

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Appeal from the United States District Court
for the Middle District of Florida

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(August 13, 1998)

Before EDMONDSON and BARKETT, Circuit Judges, and ALARCON*, Senior
Circuit Judge.

_______________

* Honorable Arthur L. Alarcon, Senior U.S. Circuit Judge for the Ninth
Circuit, sitting by designation.
EDMONDSON, Circuit Judge:

Defendant appeals his conviction claiming that

prosecutorial misconduct warrants a new trial. While some

of the prosecutor’s conduct at trial was improper, we

nonetheless conclude that a new trial is not justified. We

affirm.

Background

In 1995, the Drug Enforcement Agency (DEA) and local law

enforcement agencies conducted “Operation Cookie” -- a multi-

agency task force established to investigate large-scale drug

activity. As part of the investigation, Deputy Leon Paige and a

confidential informant negotiated a drug deal with Defendant

Kevin Wilson. Defendant was supposed to sell 125 grams -- or

2
4.5 ounces -- of crack cocaine to Paige. But, on the day of the

transaction, Defendant had only one-half ounce of crack

cocaine to sell. Nonetheless, Paige purchased the amount of

crack cocaine Defendant had at that time.1 Paige tape-recorded

the transaction. Photographic surveillance of the transaction

also occurred.

Despite this sale of cocaine, Defendant was not

immediately arrested.2 Defendant, however, was later arrested

for the one-half ounce transaction and indicted on one count of

distributing cocaine base (crack cocaine) in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The case proceeded to

trial. At the close of his case, Defendant moved for a mistrial

for prosecutorial misconduct. The district court denied

1
Paige and Defendant agreed to meet the next day to conduct the
larger 125-gram transaction. This transaction, however, does not appear
to have occurred.
2
The DEA agent supervising the transaction stated that Defendant was
not arrested so that the investigation could continue into Defendant’s
“organization” and activities.
3
Defendant’s motion. The jury convicted Defendant on the sole

count charged. The district court sentenced Defendant to 236

months’ imprisonment. Defendant appeals.

Discussion

I Reversal of Conviction due to Instances of Prosecutorial

Misconduct

Defendant argues that instances of prosecutorial

misconduct necessitate a mistrial. He specifically contends

that, because he was indicted for the single sale of only a small

amount of crack cocaine, the prosecutor improperly

characterized him as a “major” drug dealer during the course

of the trial.3 See United States v. Blakey,

3
Plaintiff cites us to these instances, among others, of misconduct:
[DIRECT EXAMINATION OF DETECTIVE PAIGE BY MR.
ROSENGART]
4
Q. Were you on that day working as part of any task force?
A. Yes.
Q. What was that task force?
A. Operation Cookie.
Q. What is Operation Cookie?
A. An operation involving multi-agents, Plant City Police
Department, Tampa Police Department and the Drug
Enforcement Agency as the supervising agency to investigate
large-scale dealers of drugs, crack cocaine in particularly.
Q. Was the defendant targeted as part of Operation Cookie?
MR. WEISBROD [Defense Counsel]: Your Honor, I
would object to the relevance.
THE COURT: Overruled.
A. Yes.
BY MR. ROSENGART:
Q. So in this Operation Cookie investigation in which the
defendant was targeted, did you arrive at 1608 East 31st
Avenue in Tampa?
A. Yes.
******
[CROSS EXAMINATION OF DEFENDANT]
Q. So isn’t it true that you are, in fact, a major cocaine player?
A. No, sir.
******
[SIDEBAR DISCUSSION]
MR. ROSENGART: I’ve got these two 404(b)
witnesses.
THE COURT: What are they going to testify?
***
MR. ROSENGART: Special Agent Paige will testify
that he personally negotiated a multikilo transaction of crack
cocaine with the defendant. And I think the reason it’s relevant is
5
14 F.3d 1557, 1560-61 (11th Cir. 1994) (prosecutor must refrain

from conduct, such as improper characterization of defendant,

that is calculated to produce wrongful conviction); United

States v. Goodwin, 492 F.2d 1141, 1147 (5th Cir. 1974); cf. United

States v. Caballero, 712 F.2d 126, 132 (5th Cir. 1983) (“The

offense charged is a major transaction, and the government

committed no error in characterizing it as such.”). In addition,

he asserts that the prosecutor made improper inquiries about

the defendant testified that this wasn’t him because he’s a small-
time player, but, in fact, he had negotiated a multikilo transaction
with Special Agent Paige.
***
THE COURT: The [Defendant] has testified that he
was just a small-gram dealer as opposed to a kilo dealer, and -- all
right, we will do that.
******
[CLOSING ARGUMENT]
[Paige] told you that on January 26, 1995, as part of
something called Operation Cookie, where major drug dealers are
targeted, he, along with a confidential informant, arranged to do a
drug deal with the defendant . . . .
***
So the defendant, himself, as a part of Operation Cookie, was
a major crack cocaine dealer.
6
his prior convictions.4 Defendant’s argument, however, is

4
Plaintiff cites us to these instances of misconduct:
[CROSS EXAMINATION BY MR. ROSENGART OF
DEFENDANT]
Q. [D]o you recall getting convicted in January of ‘96 of three
separate convictions?
A. Yes, sir.
Q. One of those involved selling drugs to a DEA agent; isn’t that
right?
A. Yes.
Q. And you were convicted after the special agent testified that
you held a gun to his head during a drug transaction; isn’t
that right?
A. Yes, sir.
MR. WEISBROD: Excuse me, Your Honor. These
convictions were not drug convictions, and they were not in
January of 1996, and Mr. Rosengart knows that.
MR. ROSENGART: The arrest was January of ‘96.
MR. WEISBROD: They were not drug convictions.
MR. ROSENGART: I didn’t say they were drug
convictions.
THE COURT: What do you mean, they? Identify
which were and which were not.
BY MR. ROSENGART:
Q. You were arrested of assaulting a Drug Enforcement
Administration special agent by holding a gun to his head;
isn’t that right?
MR. WEISBROD: Your Honor, I will object to the line
of inquiry. It’s not the number of convictions. It’s the nature of
convictions, going beyond that.
[The judge did not rule on the objection but, instead,
conducted his own examination of the witness. Mr. Rosengart then
7
unavailing. To find prosecutorial misconduct, a two-element

test must be met: “‘(1) the remarks must be improper, and (2)

the remarks must prejudicially affect the substantial rights of

the defendant.’” United States v. Gonzalez, 122 F.3d 1383, 1389

(11th Cir. 1997) (quoting United States v. Eyster, 948 F.2d 1196,

1206 (11th Cir. 1991)); see also United States v. Thomas, 62 F.3d

1332, 1343 (11th Cir. 1995). “A defendant’s substantial rights are

prejudicially affected when a reasonable probability arises that,

proceeded with his examination]
***
Q. Didn’t you have a deal with a DEA officer where you were
going to sell him more than one kilo of crack cocaine?
A. Yes, sir.
Q. And you tried to rip off the money that he brought to that
transaction, right?
A. No.
Q. You pulled a gun to his head; isn’t that right?
A. No, I didn’t.
Q. You didn’t pull a gun to his head?
MR. WEISBROD: Your Honor, I object.
THE COURT: Sustained.
MR. WEISBROD: And ask the jury to disregard the
last question and answer.
THE COURT: The jury will disregard the last question
and answer.
8
but for the remarks, the outcome [of the trial] would be

different.” United States v. Hall, 47 F.3d 1091, 1098 (11th Cir.

1995) (citing Kennedy v. Dugger, 933 F.2d 905, 914 (11th Cir.

1991)). The court makes this determination in the “‘context of

the entire trial and in light of any curative instruction.’” United

States v. Chirinos, 112 F.3d 1089, 1098 (11th Cir. 1997) (quoting

United States v. Beasley, 72 F.3d 1518, 1525 (11th Cir. 1996));

Thomas, 62 F.3d at 1343 (curative instruction may render

prejudicial remark harmless).

In this case, some of the pertinent remarks of the

prosecutor were improper.5 And, at least about some of the

5
We note that Defendant failed to object to several of the
remarks at trial. Such a failure to object typically will cause
this court to review the misconduct only for plain error.
See United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997);
United States v. Smith, 918 F.2d 1551, 1563 (11th Cir. 1990);
United States v. Russell, 703 F.2d 1243, 1248 (11th Cir. 1983).
Nonetheless, we are mindful of a defense counsel’s dilemma:
Objections may also serve to draw unwanted and unnecessary
attention to the prejudicial -- albeit improper -- conduct. See
United States v. Garza, 608 F.2d 659, 666 (5th Cir. 1979) (“[W]hile
defense counsel could and, indeed, should have objected to the
9
remarks, the government’s counsel conceded as much in the

briefs and at oral argument.6 The sole issue, then, is whether

first instances of improper comment by the prosecutor, at some
point the transgressions of this prosecutor cumulated so
greatly as to be incurable; then objection to these extremely
prejudicial comments would serve only to focus the jury’s
attention on them.”); United States v. Sawyer, 347 F.2d 372, 374
(4th Cir. 1965) (“While ordinarily, if defense counsel does not
object [to misconduct] he may be said to have waived the point,
there may be instances where the failure to object to a grave
violation manifestly stems from the attorney’s fear that an
objection will only focus attention on an aspect of the case
unfairly prejudicial to his client.”); see also McKinney v. Estelle,
657 F.2d 740, 743 (5th Cir. 1981) (“continued improprieties on the
part of the prosecution may, in some circumstances, excuse the
defense of its duty to object”).
In this case, while defense counsel may not have objected
to each instance of misconduct he now challenges, we
recognize that he did object to many of the instances of
misconduct before us here. In the light of these objections, we
assume that defense counsel objected sufficiently so as to
permit our standard review of prosecutorial misconduct (as
opposed to the strict plain error standard).
6
The government’s brief says, in pertinent part, these words:
“Although the prosecutor should not have questioned [Defendant] about
the facts underlying th[e] conviction, [Defendant] is entitled to no relief
because the district court’s instructions to the jury mitigated any
prejudice and there was overwhelming evidence of [Defendant’s] guilt.”
And, at oral argument, the government’s counsel said, in pertinent
part, these words: “And we concede it was inappropriate for [the
10
the remarks substantially affected Defendant’s rights. We

conclude that Defendant has shown no substantial prejudice.

The record reveals that the district court made an effort to

cure any prejudice that may have resulted from the

prosecutor’s remarks. In at least one instance, the district

court sustained an objection by Defendant and issued

immediately a curative instruction to the jury to disregard the

improper remark. See Gonzalez, 122 F.3d at 1389 (no

substantial prejudice because the district court sustained

objections and issued a curative instruction). In addition, the

district court gave several instructions to the jury throughout the

trial about how evidence or statements made by the lawyers

should be used and considered.7 See United States v. Bailey,

prosecutor] to state that ‘Isn’t it true that during that drug transaction in
1996, you held a gun to the special agent’s head?’”
7
For example, the district court instructed the jury about the limited
purpose for which evidence of prior convictions could be considered.
The district court also instructed the jury that statements made by the
lawyers during opening and closing arguments are not evidence and
11
123 F.3d 1381, 1402 (11th Cir. 1997). The jury is presumed to

have followed these instructions. See United States v.

Calderon, 127 F.3d 1314, 1334 (11th Cir. 1997).

Most important, evidence of Defendant’s guilt is

overwhelming. See generally United States v. McClean, 138

F.3d 1398, 1403 (11th Cir. 1998) (Despite prosecutorial

misconduct, “[defendant] cannot show prejudice in the face of

the overwhelming evidence of his guilt.”); United States v.

Gonzalez, 833 F.2d 1464, 1466 (11th Cir. 1987) (no substantial

prejudice where evidence of guilt was overwhelming); United

States v. Modica, 663 F.2d 1173, 1182 (2nd Cir. 1981) (same); cf.

Blakey, 14 F.3d at 1561 (substantial prejudice shown where

evidence “was not overwhelming”). The government presented

this evidence: (1) Deputy Paige’s direct testimony about

purchasing the cocaine from Defendant; (2) evidence of the

could not be used or considered in making the determination of
Defendant’s guilt or innocence.
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crack cocaine; (3) a tape recording of Paige, the confidential

informant, and Defendant during the drug transaction;8 and (4)

Defendant’s own testimony, which seems to corroborate the

evidence to some extent.9

We conclude that the prosecutor’s remarks, although

improper, did not affect Defendant’s substantial rights and did not

deprive him of a fair trial. The district court committed no error by

denying the motion for mistrial; and no new trial is warranted.

See United States v. Melton, 739 F.2d 576, 579 (11th Cir. 1984); see

also United States v. Dodd, 111 F.3d 867, 870 (11th Cir. 1997).

8
Defendant argued that the tape recording should not be considered
evidence of his guilt because it is “practically” unintelligible. We have
reviewed the tape. And, while we agree that the conversation on the
tape is difficult to understand, it is not incomprehensible.
9
For example, it is significant that, by testifying, Defendant permitted
the jury to hear his voice. As a result, the jury members were able to
make an independent evaluation about whether or not it was, in fact,
Defendant’s voice on the tape.
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II Alternative Sanctions for Instances of Prosecutorial

Misconduct

We thus find ourselves in a situation with which we are all

too familiar: a prosecutor has engaged in misconduct at trial,

but no reversible error has been shown. See United States v.

Boyd, 131 F.3d 951, 955 (11th Cir. 1997); see United States v.

Eason, 920 F.2d 731, 736 (11th Cir. 1990) (citing cases in which

the court has affirmed convictions despite prosecutorial

misconduct); United States v. Butera, 677 F.2d 1376, 1383 (11th

Cir. 1982); see also Modica, 663 F.2d at 1182.

We recall the duties in a criminal prosecution of a lawyer

for the United States:

“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

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 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.”

Dunn v. United States, 307 F.2d 883, 885 (5th Cir. 1962) (quoting

Handford v. United States, 249 F.2d 295, 296 (5th Cir. 1957)); see

Goodwin, 492 F.2d at 1147 (“[Prosecutor] is at liberty to strike

hard blows, but not foul ones.”).

And, as this court said in Hall, “government counsel is, as

an individual, properly and highly respected by the members of

the jury for his integrity, fairness, and impartiality.” 419 F.2d at

588 (internal quotations and citation omitted).

“It is fair to say that the average jury, in a greater or

less degree, has confidence that these obligations, which

15
 so plainly rest upon the prosecuting attorney, will be

faithfully observed. Consequently, improper suggestions,

insinuations, and, especially, assertions of personal

knowledge are apt to carry much weight against the

accused when they should properly carry none.”

Added to this is the unseen presence in the

courtroom of our great and powerful government with its

counsel and its voice in the person of the United States

Attorney. For all these reasons his power to persuade is

great. And for these reasons he must speak with the care,

the decorum and the sensitivity that befit his position and

his duties. Neither the heat and strain of trial nor the right

to strike hard blows authorizes him to do otherwise.

Id. (quoting Berger v. United States, 55 S.Ct. 629, 633

(1934)). Not only must a prosecutor be faithful to his duties

each time he enters a courtroom, he must also be mindful of

16
the authority he wields when executing those duties before a

jury.

One may think that unless a conviction is reversed, no

error has occurred. Such a proposition is incorrect. “That we

find an error not to be reversible does not transmute that error

into a virtue. The error is still an error. [And, u]rging the error

upon the trial court still violates the United States Attorney’s

obligation to the court and to the public.” Eason, 920 F.2d at

737; see Boyd, 131 F.3d at 955 (“The fact that we do not reverse

the convictions in these cases does not mean that we condone

[improper] remarks of this kind.”). But the reversal on appeal

of a conviction is usually an inappropriate method by which to

deter or to correct prosecutorial misconduct. See Modica, 663

F.2d at 1183-84; see generally United States v. Isgro, 974 F.2d

1091, 1099 (9th Cir. 1992) (dismissing indictment due to

misconduct would provide an unwarranted “windfall” to the

defendants).

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 On the matter of professional misconduct of prosecutors,

the realities require that we defer to our colleagues on the

district courts to take the lead. District courts are in a better

position to ensure that a prosecutor properly fulfills the duties

and obligations of his office. Modica, 663 F.2d at 1184-85. The

district judge is in a better position to view the pertinent

conduct -- for example, the tone and demeanor of the

prosecutor. And the district judge will almost surely have more

information -- for example, discussions off the record --

available to him when making decisions about dealing with

such conduct. Also, as we have already mentioned, “[t]he

district judge is in [the best] position to control the overall tenor

of the trial. He can order the offending statements to cease and

can instruct the jury in such a manner as to erase the taint of

improper remarks that are made.” Id.; see Thomas, 62 F.3d at

1343 (curative instruction may render prejudicial remark

harmless). Furthermore, where a prosecutor’s transgressions

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are excessive, “‘the trial judge has an obligation in the interests

of fairness and justice to stop the prosecutor delivering a

greatly prejudicial argument sua sponte.’” Garza, 608 F.2d at

666 n.7 (quoting United States v. Corona, 551 F.2d 1386, 1391

n.5 (5th Cir. 1977)).

But, aside from these corrective measures, district courts

must also consider “more direct sanctions to deter

prosecutorial misconduct.” Butera, 677 F.2d at 1383 (citing

Modica, 663 F.2d at 1182-86). The district courts have many

potential remedies available: (1) contempt citations; (2) fines;

(3) reprimands; (4) suspension from the court’s bar; (5) removal

or disqualification from office; and (6) recommendations to bar

associations to take disciplinary action. See generally Bennett

L. Gershman, Prosecutorial Misconduct Ch. 13 (1997). “We

encourage the district courts in this circuit to remain vigilant .

. . and consider more [fully these sanctions] in cases of

persistent or flagrant misconduct.” Butera, 677 F.2d at 1383.

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 We do not say that the prosecutor’s words in this case

warranted more action than what was taken by the district

court. We know that the trial of a criminal case is not a dainty

affair. And, this case is by no means the worst we have seen

from prosecutors. Also, we do recognize that most

prosecutors in most trials act completely consistently with their

professional obligations.

But, we want to make clear that improper remarks and

conduct in the future, especially if persistent, ought to result in

direct sanctions against an offending prosecutor individually.

“We expect the able attorneys who supervise federal

prosecutors throughout this Circuit to renew their efforts to

maintain the high level of conduct that has traditionally

characterized the office of the United States Attorney.” Modica,

663 F.2d at 1186. And prosecutors must expect that this court

will support district judges who take reasonable steps to

correct prosecutorial conduct that is not right.

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AFFIRMED.

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