United States v. Christopher Weast , 811 F.3d 743 ( 2016 )

Case: 14-11253 Document: 00513356044 Page: 1 Date Filed: 01/26/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-11253 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, January 26, 2016
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
CHRISTOPHER ROBERT WEAST,
Defendant - Appellant
Appeals from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, OWEN, and ELROD, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Christopher Weast appeals his conviction for receipt and possession of
child pornography, alleging four distinct constitutional violations. We
AFFIRM.
I
On June 4, 2012, Fort Worth Police Department officer Randy Watkins
used peer-to-peer file sharing software 1 to search for computer users sharing
1 Peer-to-peer networks allow computer users to download files directly from other
users’ computers. Typically, each network user maintains a “shared folder” on his or her
computer containing data accessible to other users. Peer-to-peer software is used to locate
files on other users’ computers and to transfer files between computers.
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child pornography. Officer Watkins located an IP address 2 whose
corresponding user appeared to be sharing child pornography. 3 He then used
the peer-to-peer software to download six files shared by the user. The files had
been stored on a computer that the user had nicknamed “Chris,” and they
contained apparent child pornography.
Officer Watkins used a publicly accessible website to determine the
internet service provider (ISP) associated with the IP address from his search.
A subsequent subpoena to that ISP revealed that the IP address was registered
to Larry Weast. Law enforcement officers executed a search warrant at Weast’s
residence, where they found his son, Chris. Chris refused to be interviewed.
The officers seized computer equipment from Chris’s bedroom, including a
hard drive that was later found to contain child pornography.
Chris (hereinafter Weast) was indicted in the Northern District of Texas
for possession and receipt of child pornography. 4 The court appointed him
counsel. Weast then moved to represent himself. After an apparently
uneventful hearing, a magistrate judge granted his motion. Weast proceeded
to file several garbled motions of the “sovereign citizen” variety. 5 The district
court rejected them as “nonsensical and wholly without merit” and ordered a
new hearing on the subject of Weast’s self-representation.
2 An IP (Internet Protocol) address uniquely identifies a particular network-connected
device.
Watkins determined this by using law enforcement software to compare a listing of
3
media files that that user had shared with a law enforcement database of child pornography.
The comparison suggested that 1,761 of the user’s shared files were known child pornography
media files.
4 See 18 U.S.C. §§ 2252A(a)(5)(B), (a)(2)(A).
5 The sovereign citizen movement is a loose grouping of litigants, commentators, and
tax protesters who often take the position that they are not subject to state or federal statutes
and proceedings. See, e.g., United States v. Thody, No. 14-50904, 2016 WL 104369, at *1 (5th
Cir. Jan. 8, 2016) (“Thody believed he was a ‘sovereign citizen’ not subject to federal law. He
therefore believed that the Internal Revenue Code did not require him to pay taxes.”).
2
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At the hearing, Weast was repeatedly disruptive, leading the court to
order a competency evaluation. He was again disruptive at a subsequent
hearing convened to discuss that evaluation’s results. The court arranged for
him to participate from another room through an audio/video link, which the
court could mute in case of further interruption. After hearing evidence from a
forensic psychologist and conferring with counsel from both sides, the court
concluded that Weast was competent but could not be allowed to represent
himself on account of his conduct. 6 It entered a 39-page order justifying its
decision. On multiple occasions, the district court told Weast that he would be
permitted to rejoin the proceedings in person if he would agree to behave
appropriately. However, in subsequent appearances before the court, Weast’s
behavior remained much the same.
Weast’s trial began on July 28, 2014 and lasted two days. The jury found
him guilty of possession and receipt of child pornography. After further
proceedings in which Weast continued to act disruptively, the court followed
the sentencing guidelines and gave him 30 years in prison.
II
On appeal, Weast first claims that Officer Watkins violated his Fourth
Amendment rights by using peer-to-peer software, without a warrant, to
identify Weast’s IP address as possibly linked to child pornography and to
download data that Weast had made available for sharing. Citing the Supreme
Court’s recent decision in Riley v. California, 7 Weast moved before trial to
suppress all evidence obtained through these activities and the subsequent
6 The court also ruled that Weast would have to participate in his trial from outside
the courtroom, again through the audio/video link. At trial, it instructed the jurors not to
make inferences from Weast’s absence.
7 573 U.S. ___, 134 S. Ct. 2473 (2014).
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search of the Weast household. 8 The district court denied the motion, reasoning
that Weast had no reasonable expectation of privacy in the information
accessed through the software and website. We review this conclusion of law
de novo. 9
We have never explicitly stated whether IP addresses or files shared
through peer-to-peer networks are subject to a reasonable expectation of
privacy. However, other circuits have concluded that they are not. As the Third
Circuit has explained, “[f]ederal courts have uniformly held that ‘subscriber
information provided to an internet provider,’” including IP addresses, “‘is not
protected by the Fourth Amendment’s privacy expectation’ because it is
voluntarily conveyed to third parties.” 10 Similarly, other courts have
consistently held that Fourth Amendment protections do not extend to data
shared through peer-to-peer networks. 11
Weast acknowledges much of this unfavorable precedent, but argues
that Riley should be understood to have wiped the slate clean. In Riley, the
Supreme Court held that the Fourth Amendment prohibits warrantless
searches of arrestees’ cell phones. 12 That case relied on the presumption that
the arrestees had a reasonable expectation of privacy in the information on
their cell phones. Unlike those arrestees, however, Weast had already
voluntarily shared all of the information at issue in this case. He broadcast his
8 The warrant for that search was based on an affidavit by Officer Watkins that relied
in turn on evidence obtained through the peer-to-peer software.
9 See United States v. Conlan, 786 F.3d 380, 387 (5th Cir. 2015).
10 United States v. Christie, 624 F.3d 558, 573 (3d Cir. 2010) (quoting United States v.
Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008)); see, e.g., United States v. Wheelock, 772 F.3d
825, 828 (8th Cir. 2014); United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010).
11 See, e.g., United States v. Conner, 521 F. App’x 493, 497-98 (6th Cir. 2013); United
States v. Borowy, 595 F.3d 1045, 1047-48 (9th Cir. 2010); United States v. Stults, 575 F.3d
834, 843 (8th Cir. 2009).
12 134 S. Ct. 2473, 2485 (2014).
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IP address far and wide in the course of normal internet use, 13 and he made
the child pornography files and related data publicly available by downloading
them into a shared folder accessible through a peer-to-peer network. 14 Such
behavior eliminates any reasonable expectation of privacy in the information,
rendering Riley inapposite. 15
Our recent decision in Guerrero reinforces this conclusion. In that case,
we held that Riley did not overrule our precedent withholding Fourth
Amendment protection from cell phone location data passively transmitted to
service providers. 16 The reasoning of Guerrero easily extends to the facts now
before us; IP addresses and peer-to-peer-shared files are widely and
voluntarily disseminated in the course of normal use of networked devices and
peer-to-peer software, just as cell phone location data are disseminated in the
course of normal cell phone use. For this reason, Weast’s Fourth Amendment
rights were not violated when Officer Watkins accessed his IP address and
shared files. 17
13 See Christie, 624 F.3d at 563 (“IP addresses are also conveyed to websites that an
internet user visits, and administrators of websites . . . can see the IP addresses of visitors to
their sites.”).
14 See Conner, 521 F. App’x at 497 (“[P]eer-to-peer file sharing . . . programs . . . are
expressly designed to make files on a computer available for download by the public,
including law enforcement. Peer-to-peer software users are not mere intermediaries, but the
intended recipients of these files. Public exposure of information in this manner defeats an
objectively reasonable expectation of privacy under the Fourth Amendment.”). In his pre-
warrant investigation, Officer Watkins could not and did not access data on Weast’s computer
other than that stored in the shared folder.
15 See United States v. Post, 997 F. Supp. 2d 602, 606 (S.D. Tex. 2014) (Costa, J.)
(“[Riley was] not about whether an arrestee has a privacy interest in a cellphone found in his
possession. He maintains such an interest in both the phone and its contents. The issue [was]
whether the justifications that overcome that privacy interest and allow for warrantless
seizure of the phone also support warrantless search of its contents.”).
16 United States v. Guerrero, 768 F.3d 351, 358-60 & 60 n.7 (5th Cir. 2014) (Costa, J.)
(Riley did not overturn Supreme Court precedent finding no reasonable expectation of privacy
in “information already in the possession of an identifiable third party”), cert. denied, 135 S.
Ct. 1548 (2015).
17 Accord United States v. Carter, 2015 WL 5474180, at *1-2 (N.D. Ohio Sept. 16, 2015)
(on essentially identical facts, denying motion to suppress and distinguishing Riley).
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III
Weast next claims that the court denied him his Sixth Amendment
rights by refusing to let him represent himself at trial. We review this
constitutional challenge de novo, but scrutinize the district court’s underlying
factual findings for clear error only. 18 “The denial of a defendant’s right to
represent himself, if established, requires reversal without a harmless error
analysis.” 19
As discussed above, after Weast repeatedly disrupted pretrial hearings,
the district court entered a lengthy and detailed order detailing his
obstreperous conduct up to that point. The court explained that Weast
consistently refused to answer basic questions (e.g., what his name was and
whether he was pleading guilty or not guilty), interrupted the court ad
nauseam, and “barraged the court with bizarre filings.” His behavior showed
no sign of abating over time, and he ignored numerous entreaties from the
bench to change tack. The court concluded that Weast was pursuing “a
deliberate and calculated defense strategy to so disrupt the proceedings that
they cannot go forward in a meaningful way,” and determined that absent a
change in behavior, he could not be allowed to represent himself.
Unfortunately, no such change occurred between the time the order was
entered and the time of trial. Weast filed more nonsensical motions, and was,
if anything, more disruptive than before in a pretrial appearance before the
court, a remote appearance during the trial (but outside the presence of the
jury) to determine whether he would testify, and sentencing proceedings after
the trial.
18 United States v. Joseph, 333 F.3d 587, 589 (5th Cir. 2003); Gomez v. Collins, 993
F.2d 96, 98 (5th Cir. 1993).
19 United States v. Majors, 328 F.3d 791, 794 (5th Cir. 2003).
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These antics justified the district court’s decision. “[T]he trial judge may
terminate self-representation by a defendant who deliberately engages in
serious and obstructionist misconduct.” 20 Weast acknowledges this basic
principle, but nonetheless claims error on two grounds. First, he argues that
the court could not be sure he would disrupt trial without actually letting him
represent himself at trial; that is, only if he disrupted his actual trial could the
court constitutionally deny him self-representation. This principle is nowhere
in our case law. Indeed, in Vernier, an unpublished case, we commented that
“a defendant’s request to represent himself at trial may be rejected if it is
intended to cause delay or some tactical advantage” or if pretrial behavior
suggests that the defendant intends to disrupt the trial. 21 We also noted that
“[o]ther circuits hold that a trial court may deny the right of self-representation
when evidence indicates that the defendant intends to use the right to delay or
disrupt the trial.” 22 The facts in this case closely track those in Long, in which
we found that the defendant “may well have” waived self-representation
through similar pretrial conduct, 23 and Brock, in which the Seventh Circuit
concluded that similar behavior did waive self-representation. 24 And in
Vernier, we upheld a denial of self-representation based solely on pretrial
conduct, although that conduct suggested a strong risk of violence (unlike
here). 25 Given this precedent, the district court was not legally required to
20 Faretta v. California, 422 U.S. 806, 834 n.46 (1975); see United States v. Vernier,
381 F. App’x 325, 328 (5th Cir. 2010) (unpublished) (“The right [to self-representation] is
forfeited by . . . disruptive conduct, or by abusing the dignity of the courtroom.”) (citing
Indiana v. Edwards, 554 U.S. 164 (2008), and Faretta, 422 U.S. at 834 n. 46).
21 Vernier, 381 F. App’x at 328-29.
22 Id. at 328.
23 United States v. Long, 597 F.3d 720, 726-27 (5th Cir. 2010). We concluded that this
behavior, “coupled with [the defendant], just before trial began, having told the district court
that he did not wish to represent himself,” resulted in waiver. Id. at 729.
24 United States v. Brock, 159 F.3d 1077, 1080-81 (7th Cir. 1998).
25 Vernier, 381 F. App’x at 329.
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allow Weast to disrupt the trial itself in order to appoint him counsel against
his wishes.
Second, Weast argues that he could have represented himself without
causing problems by participating in the trial through the audio/video link,
subject to the judge’s ability to mute the line. But the district court reasonably
concluded that such an arrangement would not prevent undue disruption.
Even after being removed from the courtroom, Weast continuously interrupted
proceedings, refused to answer questions, and delivered nonsensical rants
through the audio/video link, forcing the court to repeatedly mute him. 26 His
conduct was no better when he briefly returned to the courtroom during a
pretrial hearing.
Even Weast concedes (through counsel) that his behavior was “bizarre
and disruptive.” The district court did not clearly err in concluding that
allowing him to represent himself, even remotely, would severely compromise
his trial. Its consequent decision to appoint him counsel against his wishes was
constitutionally sound.
IV
Weast next challenges the district court’s decision to limit the testimony
of his expert witness, Bill McGregor, a digital forensics specialist. In a bench
conference before McGregor testified, the district judge decided to limit
McGregor’s testimony to a handful of questions. Weast’s counsel did not object.
26 The evidence Weast cites in arguing that he could have represented himself
remotely – his purportedly “success[ful]” remote cross-examination of the forensic
psychologist during his competency hearing – hardly helps his case. After asking a few
questions about the depth of the psychologist’s evaluation, Weast launched into a speech
questioning the court’s authority to order a competency hearing, insisting that the judge
recuse himself, and concluding: “I’m sorry if it doesn’t bode well with all the people that are
sitting here from the British government, but that is the way it goes here in the United
States. We are sovereign as – as of the Treaty of Paris 1783, so I’m not sure what we’re doing
here. . . . I’m not your property.”
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McGregor then took the stand and testified that Weast’s computer was
susceptible to being hacked and that digital images could be and commonly
were altered. The court cut Weast’s counsel off when he tried to ask McGregor
about whether viruses were present on Weast’s computer, commenting that “I
think that’s already been developed” and “I don’t think that’s the subject we
were dealing with.” Again, Weast’s counsel did not object.
When a defendant fails to timely object to a disputed evidentiary ruling,
we review for plain error only. 27 “Under the plain-error standard, this Court
makes three initial determinations: (1) whether the district court committed
error; (2) whether the error is ‘clear and obvious’; and (3) whether the error
affects substantial rights. ‘If these three conditions are satisfied, we have
discretion to reverse the district court if we conclude that the error ‘seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” 28
“The plain error doctrine only permits us to correct egregious errors which
result in a miscarriage of justice.” 29
The court below did not plainly err. According to Weast, McGregor’s
testimony would have shown that the images on Weast’s computer had been
altered, that it is impossible to tell whether a digital photo depicts a real minor,
that Weast’s computer could have been hacked, and that virus scans showed
27 See United States v. Bishop, 629 F.3d 462, 468 (5th Cir. 2010); United States v.
Duffaut, 314 F.3d 203, 209 (5th Cir. 2002). It is unclear whether Weast’s challenge to the
limits on McGregor’s testimony is constitutional or statutory in nature. His brief claims those
limits violated his Sixth Amendment rights, but appears to apply the abuse of discretion
standard (i.e., that applicable to evidentiary, not constitutional, rulings) in its discussion. In
either case, however, plain error review applies. And even if it did not, any error in the ruling
below would have been harmless for the reasons described in this section. See United States
v. Wen Chyu Liu, 716 F.3d 159, 167 (5th Cir. 2013) (applying harmless error review in an
evidentiary challenge based on statute), cert. denied, 134 S. Ct. 1011 (2014); United States v.
Skelton, 514 F.3d 433, 438 (5th Cir. 2008) (applying the same standard in a challenge based
on the Sixth Amendment).
28 United States v. Wofford, 560 F.3d 341, 351 (5th Cir. 2009) (quoting United States
v. Stevens, 487 F.3d 232, 242 (5th Cir. 2007)).
29 United States v. Maceo, 947 F.2d 1191, 1198 (5th Cir. 1991).
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that Weast’s computer was vulnerable to hacking. But Weast’s counsel covered
these issues in cross-examining the government’s expert. The district court did
not “clear[ly] and obvious[ly]” err in excluding McGregor’s cumulative
testimony on this point. 30 Even if it had, such an error would not have affected
Weast’s substantial rights, both because the government presented significant
incriminating evidence 31 and because Weast was able to develop the points at
issue during cross-examination and closing argument. 32
V
Finally, Weast calls our attention to two allegedly improper
prosecutorial comments. First, in examining Officer Watkins, the prosecutor
asked whether Weast “was . . . cooperative” during the search of the Weast
residence (i.e., before Weast was arrested). Weast’s counsel objected and moved
for a mistrial. The court denied the motion, but instructed the jury shortly
thereafter:
[T]he defendant has no obligation to be cooperative with law
enforcement, and if he chooses not to be, that’s not relevant. So to
30 See, e.g., United States v. Arledge, 553 F.3d 881, 894 (5th Cir. 2008).
31 At trial, prosecution witnesses testified that Officer Watkins was able to download
apparent child pornography from a peer-to-peer user with an IP address registered to Weast’s
father; that according to Watkins’s software, the illicit files came from a computer nicknamed
“Chris”; that Chris had a sub-account within Weast’s father’s AT&T internet service account;
that files on a laptop and external hard drive seized from Chris’s bedroom contained
metadata linking them to the Weast IP address; that the laptop’s primary user account was
labeled “Chris” and contained peer-to-peer software; that the peer-to-peer software’s shared
folder contained child pornography; that the laptop’s registry contained numerous filenames
suggesting child pornographic content; that the external hard drive contained child
pornography files; that the external hard drive had been connected to the laptop in the past;
that the peer-to-peer software on the laptop had been used to search for numerous terms
related to child pornography; that no other devices seized from the Weast residence contained
child pornography; that the malware present on Weast’s computer could not have transferred
illicit files to the external hard drive; that other members of the family were not in the habit
of using Weast’s computer equipment; and that a child depicted in several of the files was
familiar to FBI personnel from a previous child pornography investigation. Weast does not
challenge the sufficiency of the evidence against him.
32 See Sanford v. Johns-Manville Sales Corp., 923 F.2d 1142, 1148 (5th Cir. 1991)
(“The exclusion of cumulative testimony is harmless.”).
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whatever extent that had been brought out, the jury is not to
consider that for any purpose, the fact that he did not cooperate
because he had no obligation to.
Second, during the prosecution’s closing argument, the following
exchange transpired:
[Prosecutor:] […] We can’t bring in here every child whose pictures
appear because they are not all identified, but I would submit to
you, it is -- there is one person who does know what the contents of
that hard drive and what that laptop contain. It’s the person who
was entering their own search –
[Defense counsel]: Objection, Your Honor, improper argument as
to Mr. Weast’s right to remain silent.
THE COURT: I don’t interpret it that way, but be careful. Of
course, the defendant does have the right to remain silent. Go
ahead.
[Prosecutor]: The person who entered in those search terms
looking for child pornography, the person who was connected to the
internet, the person who downloaded child pornography, the
person whose face appears on that Western Digital hard drive. 33
Weast’s counsel moved for a mistrial. The court denied the motion, but
instructed the jury immediately after the prosecutor concluded her argument:
To whatever extent her argument might have implied that the
defendant had any responsibility to explain the material in his
room, or to testify, or to do anything other than to remain silent,
the jury won’t consider it for that purpose because he did not have
any obligation to cooperate, or to make any statement, and
certainly had the right to not testify during this trial. So, if
anything she said implied other than that, you’ll disregard those
statements.
On appeal, Weast claims that these comments violated his Fifth
Amendment right not to testify and compelled a mistrial. “Generally, we apply
a two-step analysis to claims of prosecutorial misconduct. First, we assess
33 Emphasis added.
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whether ‘the prosecutor made an improper remark.’ If so, then we ask whether
the defendant was prejudiced. The prejudice step ‘sets a high bar . . . The
determinative question is whether the prosecutor’s remarks cast serious doubt
on the correctness of the jury’s verdict.’ We generally look to three factors in
deciding whether any misconduct casts serious doubt on the verdict: ‘(1) the
magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy
of any cautionary instruction by the judge, and (3) the strength of the evidence
supporting the conviction.’” 34
The prosecutor’s “cooperative” question might plausibly be interpreted
to refer to Weast’s pre-arrest silence, especially since Officer Watkins had
stated shortly before that he had “asked Christopher Weast to speak with me
in my car.” 35 However, in order for the question to potentially rise to the level
of a constitutional violation, this interpretation must be more than plausible.
Instead, “[a] prosecutor’s or witness’s remarks constitute comment on a
defendant’s silence if the manifest intent was to comment on the defendant’s
silence, or if the character of the remark was such that the jury would naturally
and necessarily so construe the remark.” 36 The comment at issue fails to clear
these hurdles. 37 More fundamentally, this court has not yet decided whether a
prosecutor may comment on a non-testifying defendant’s pre-arrest, pre-
34 United States v. Davis, 609 F.3d 663, 677 (5th Cir. 2010) (quoting United States v.
Fields, 483 F.3d, 313, 358 (5th Cir. 2007)).
35 See United States v. Shaw, 701 F.2d 367, 381 (5th Cir. 1983) (“[T]he character of the
remarks [is] determined by reviewing the context in which they occur . . . .”).
36 United States v. Wright, 777 F.3d 769, 779 (5th Cir.) (quoting United States v.
Andaverde–Tinoco, 741 F.3d 509, 520 (5th Cir. 2013)), cert. denied, 135 S. Ct. 2821 (2015).
37 See United States v. Schaffer, 582 F. App’x 468, 475 (5th Cir. 2014) (unpublished)
(“[I]t is difficult to see how the jury could consider the vague remark, ‘wasn’t being
cooperative,’ as a comment on [defendant’s] silence.”).
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Miranda silence. 38 Weast’s challenge to the “cooperative” comment is therefore
on uncertain footing. 39
The prosecutor’s comments during closing argument are similarly
ambiguous. In isolation, they could be plausibly be interpreted to refer to
Weast’s silence at trial, in violation of his Fifth Amendment and due process
rights. 40 But in context, and especially given the sentence immediately after
the disputed statement, the thrust of the comments was arguably that the user
who had entered search terms related to child pornography (presumably
Weast) must have known about the illicit files, not that Weast’s silence
suggested that he knew of the files. 41 The fact that the prosecutor addressed
the defense’s “virus argument” (i.e., that the files may have been remotely
added to Weast’s computer without his knowledge) shortly before and
immediately after the disputed comment supports this reading.
Moreover, even assuming that the comments in dispute were improper,
Weast cannot show that the impropriety casts serious doubt on the verdict. The
prejudicial effect of the comments is uncertain, given that they did not directly
reference Weast’s silence and are reasonably susceptible to interpretations
having nothing to do with that silence. Any possible prejudice would have been
further diminished by the district court’s prompt, thorough, and unequivocal
38 See United States v. Ashley, 664 F.3d 602, 604 (5th Cir. 2011) (discussing the circuit
split on this issue). The Fifth Circuit has “taken the position that the prosecution can use a
non-testifying defendant’s pre-arrest silence as long as the silence ‘is not induced by, or a
response to, the actions of a government agent.’” Id. at 604 n.6 (quoting United States v.
Salinas, 480 F.3d 750, 758 (5th Cir. 2007). However, Weast’s lack of cooperation was arguably
“induced by, or a response to” Officer Watkins’s request.
39 For the reasons described in this section, the court need not resolve this issue in
order to dispose of Weast’s appeal.
40 See Salinas, 480 F.3d at 756.
41 The government’s expert testified that someone using Weast’s computer had
entered search terms related to child pornography into a peer-to-peer program. The
government also submitted an exhibit containing these search terms. See also United States
v. Canales, 744 F.2d 413, 424 (5th Cir. 1984) (allegedly improper closing argument must be
“considered in light of the argument to which it responded”).
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curative instructions. 42 Finally, the prosecution’s evidence is robust enough to
sustain his conviction in any event. Therefore, the comments in question do
not justify reversal.
VI
Each of Weast’s four arguments fails. We find no reversible error in the
judgment of the district court, and AFFIRM.
42 Cf. United States v. Johnston, 127 F.3d 380, 399 (5th Cir. 1997) (prejudice “was
mitigated somewhat . . . . [but] remained” when judge gave brief and somewhat confusing
curative instruction one day after improper prosecutorial comment). The district court in this
case also gave standard instructions concerning the defendant’s right to remain silent at the
open and close of evidence.
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