United States v. Blanchard, Marshall ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2780
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARSHALL L. B LANCHARD ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05 CR 20015—Michael P. McCuskey, Chief Judge.
____________
A RGUED A PRIL 3, 2008—D ECIDED S EPTEMBER 8, 2008
____________
Before F LAUM, M ANION, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Marhsall Blanchard was tried and
convicted of one count of manufacturing methamphet-
amine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),
and one count of unlawful possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). He
challenges both convictions on a variety of grounds,
including the denial of his pretrial motions for a bill of
particulars and severance, the alleged constructive amend-
2 No. 07-2780
ment of the indictment, the sufficiency of the evidence,
and the introduction at trial of certain comments, orig-
inally made at a pretrial suppression hearing, by the
district court judge. Blanchard also challenges his sen-
tence, contending that the district court erroneously
applied certain enhancements in calculating the advisory
guidelines range. For the reasons set forth in this opinion,
we vacate Blanchard’s convictions and remand for a
new trial.
I. Background
The Defendant, Marshall Blanchard, owned two homes,
one in Roberts, Illinois, and the other in Paxton, Illinois.
The two towns are roughly 15 miles apart in east-central
Illinois. Blanchard acquired and moved into the Roberts
home no later than sometime during the year 2001, the
same year in which he separated from his ex-wife.
With the exception of a seven-month period during 2003,
Blanchard’s son, Marshall Jr.,1 lived with him at the
Roberts residence. In the fall of 2001, Marshall Jr. removed
several firearms—four rifles and two shotguns—from an
enclosed porch area of the Roberts residence and delivered
them to a family friend’s place of business for storage. He
later returned the same firearms to the porch area of the
Roberts residence, but more on that later.
1
Because the Defendant, Marshall Blanchard, and his son,
Marshall Blanchard Jr., share the same name (apart from the
“Jr.” designation), for the sake of clarity, we hereinafter refer
to the Defendant as “Blanchard” and to his son as “Marshall Jr.”
No. 07-2780 3
After moving out of the Roberts residence in Febru-
ary 2003, Marshall Jr. returned sometime in August 2003.
At that time, he was twenty years old and studying
criminal justice at a local college. During the summer of
2004, Marshall Jr. began using the porch area of the
Roberts residence as his bedroom. In order to enjoy
exclusive access to his bedroom, Marshall Jr. installed a
lock on the door leading to the porch area from the interior
of the house and kept the only key for himself. In October
or November of 2004, Marshall Jr. retrieved the aforemen-
tioned firearms from the family friend’s place of business
and returned them to the porch area at the Roberts resi-
dence. Those firearms remained in the porch area of the
Roberts residence throughout the remainder of 2004.
Meanwhile, during the late summer and fall of 2004,
Marshall Jr. began to notice peculiar physical and behav-
ioral changes in his father. He noticed that Blanchard lost
considerable weight, had blemishes and sores on his face,
did not sleep much, and seemed unusually agitated. In
addition, Blanchard regularly entertained visitors, some
of whom Marshall Jr. did not know; however, he did
know the most frequent visitor, Cynthia Blanding.
Blanding and Blanchard met in mid-October 2004. At
that time, Blanding was in the process of moving out of
her home, from which she had been evicted. Blanding and
Blanchard became romantically involved, and Blanchard
offered to let Blanding stay at the house in Paxton, which
she did on occasion. She also stayed overnight with
Blanchard on several occasions at the Roberts residence.
One day in the last week of December 2004, Marshall Jr.
was home alone at the Roberts residence. He noticed a
4 No. 07-2780
strong, ammonia-type smell coming from the sink; upon
inspection, he observed a strainer and some glass jars in
the sink. The following day, he arrived home early from
work and discovered two plastic bottles containing an “off-
white crystal” substance. He opened one of the bottles
and encountered a strong ammonia-type odor. Marshall Jr.
recalled information that he had learned about metham-
phetamine in his criminal justice studies; at this point,
putting the off-white substance together with his father’s
recent physical and behavioral changes, he suspected
that the substance was methamphetamine. Marshall Jr.
photographed the bottles with his digital camera and took
a spoon-sized sample of the off-white substance; he then
went to see his mother, Lori Blanchard. After discussing
his suspicions and concerns with her, Marshall Jr. left Lori
with the sample of the off-white substance and a disk
containing the photos from his digital camera. Lori then
contacted the Roberts chief of police, Randy Kinzinger, and
delivered these items to him. The off-white substance
tested positive for ephedrine, a commonly used ingredient
in the manufacture of methamphetamine.
Shortly thereafter, on December 30, 2004, law enforce-
ment officers executed search warrants at both the
Roberts and Paxton residences. At both residences, officers
seized items that, although innocuous when viewed
individually and in isolation, might nonetheless be used, as
a group, for methamphetamine manufacturing. At the
Paxton residence, for example, officers seized camp fuel
containers, a sulfuric acid container, filters, salt, a gas
mask, and pseudoephedrine packaging; cleaning officials
later encountered hazardous substances, including anhy-
No. 07-2780 5
drous ammonia, at that residence. And at the Roberts
residence, officers seized, among other things, numerous
coffee filters, an anhydrous ammonia tank, and a propane
tank. And not only was there “smoke,” but also “fire”;
officers seized 9.8 grams of a substance containing meth-
amphetamine from the Paxton residence and 69 grams of
a substance containing methamphetamine from the
Roberts residence. In addition, at the Roberts residence,
officers seized .01 grams of methamphetamine from the
nightstand in Blanchard’s bedroom and .10 grams of
methamphetamine from a plastic plate beneath his bed. At
the Roberts residence, officers also seized four rifles and
two shotguns from the aforementioned enclosed porch
area, and they seized a .32-caliber revolver and ammuni-
tion from underneath the mattress in Blanchard’s bedroom.
On April 8, 2005, Blanchard was charged in a federal
indictment with one count of manufacturing metham-
phetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C) (Count One), and one count of unlawful
possession of a firearm by a convicted felon, in violation
of 18 U.S.C. § 922(g) (Count Two). The indictment alleged
that both offenses occurred “on or about December 30,
2004.”
Blanchard’s trial began on March 27, 2006. At trial, the
government presented the evidence seized from both
residences, as well as expert testimony opining that a
“meth lab” existed at the Paxton residence and that
materials consistent with the manufacture of metham-
phetamine were found at the Roberts residence. Marshall
Jr. testified regarding his observations in late 2004 that
6 No. 07-2780
led him to suspect that his father was using methamphet-
amine. He also testified regarding the firearms seized
from the porch area of the Roberts residence; he ex-
plained that all but one of the guns belonged to his father,
that his father controlled and directed both the 2001
removal and the 2004 retrieval/return of those firearms,
and that he stopped using the porch area of the Roberts
residence as his bedroom in September or October 2004,
allowing his father unfettered access to the porch area
throughout the remainder of the year. Blanding, testifying
on behalf of the government pursuant to an immunity
agreement, testified that Blanchard allowed her to use
the Paxton residence for methamphetamine manufactur-
ing, and that in exchange, she supplied him with metham-
phetamine. In addition, she testified that Blanchard
sometimes supplied materials and assisted in the manu-
facturing process. She further testified that on or about
Christmas Eve 2004, she and Blanchard completed the
manufacture of a quantity of methamphetamine at the
Roberts residence. Finally, she testified that Blanchard
had shown her a handgun that he kept beneath the mat-
tress in his bedroom at the Roberts residence.
The trial concluded on March 31, 2006, with the jury
finding Blanchard guilty on both counts. The district court
rejected Blanchard’s post-verdict motion for judgment of
acquittal, characterizing the evidence in support of
both counts as “overwhelming.” The court sentenced
Blanchard to 150 months’ imprisonment on Count One
and 120 months’ imprisonment on Count Two, to be
served concurrently. In addition, the court sentenced
Blanchard to three years of supervised release and a $100
No. 07-2780 7
special assessment. Blanchard timely filed this appeal,
challenging both his convictions and his sentence.
II. Discussion
On appeal, Blanchard challenges both convictions on
a variety of grounds, including (1) the denial of his
pretrial motions for a bill of particulars and a severance;
(2) an alleged fatal variance between the date specified
in the indictment and the evidence presented at trial,
resulting in constructive amendment of the indictment;
(3) certain statements made by the trial judge at a pretrial
suppression hearing and subsequently introduced at
trial; and (4) the sufficiency of the evidence. We address
these arguments in turn below. Blanchard also chal-
lenges his sentence, but in light of our conclusion with
regard to his convictions, we need not address that chal-
lenge.
A. Pretrial Motions for Bill of
Particulars and Severance
Before trial, Blanchard moved for a bill of particulars
pursuant to Federal Rule of Criminal Procedure 7(f). The
indictment alleged that Blanchard committed both the
methamphetamine manufacturing offense and the fire-
arms offense “on or about December 30, 2004, in the
Central District of Illinois.” In moving for a bill of particu-
lars, Blanchard sought more specific information con-
cerning the time and place of the alleged offenses, as
well as the identity of the firearm (or firearms) alleged in
8 No. 07-2780
Count Two. The district court denied that motion, finding
that “the charges are not complex, the indictment is
sufficiently clear, and Defendant has been provided with
discovery regarding the charges.” Blanchard now appeals,
contending that the denial of this motion deprived him of
an adequate opportunity to prepare for and meet the
government’s evidence at trial.
We review the trial court’s discretionary decision to
deny a motion for a bill of particulars deferentially,
reversing only upon an abuse of that discretion. United
States v. Fassnacht, 332 F.3d 440, 446 (7th Cir. 2003); see also
United States v. Hernandez, 330 F.3d 964, 975 (7th Cir. 2003).
We will reverse only upon a showing of actual prejudice
to the defendant. Hernandez, 330 F.3d at 975.
Our bill-of-particulars analysis is similar to our con-
stitutional sufficiency-of-the-indictment analysis; in both
cases, the key question is whether the defendant was
sufficiently apprised of the charges against him in order
to enable adequate trial preparation. See Fassnacht, 332
F.3d at 446; see also Hernandez, 330 F.3d at 975 (“[A] bill
of particulars [is] unnecessary where the indictment sets
forth the elements of the charged offenses and provides
sufficient notice of the charges to enable the defendant
to prepare his defense.”). Information relevant to the
preparation of a defense includes the elements of each
charged offense, the time and place of the accused’s
allegedly criminal conduct, and a citation to the statute or
statutes violated. See Fassnacht, 332 F.3d at 446. Where the
indictment fails to provide the full panoply of such infor-
mation, a bill of particulars is nonetheless unnecessary
No. 07-2780 9
if the information “is available through ‘some other
satisfactory form,’ such as discovery.” Hernandez, 330 F.3d
at 975 (quoting United States v. Canino, 949 F.2d 928, 949
(7th Cir. 1992)).
Because Blanchard had ample access to the information
necessary to prepare his defense, the district court did not
abuse its discretion here. Although the indictment was
somewhat sparse, Blanchard was the beneficiary of exten-
sive pretrial discovery. For example, he received law
enforcement reports concerning the searches of his two
residences, the corresponding search warrants and sup-
porting documents, and a report of his statements to
law enforcement officers. Given knowledge of the evi-
dence seized from both residences and the terms of the
indictment, Blanchard was undoubtedly aware that the
government might seek to prove that he manfuctured
methamphetamine at either residence and that he pos-
sessed firearms at the Roberts residence on a date approxi-
mating the “on or about” date alleged in the indictment.
This was more than sufficient to enable Blanchard to
prepare for trial. See Fassnacht, 332 F.3d at 446 (noting
that “the defendant’s constitutional right is to know the
offense with which he is charged, not to know the details
of how it will be proved” (quoting United States v. Kendall,
665 F.2d 126, 135 (7th Cir. 1981))). Therefore, the district
court did not abuse its discretion in denying Blanchard’s
motion for a bill of particulars.
Before trial, Blanchard also moved to sever Counts One
and Two for separate trials pursuant to Federal Rules of
Criminal Procedure 8(a) and 14. He now appeals the
10 No. 07-2780
district court’s denial of that motion, arguing that the
joinder of the drug and firearms offenses was improper
and unduly prejudiced him at trial. Although Blanchard
waived the Rule 14 severance aspect of this motion by
failing to renew it at the close of the evidence, see United
States v. Ross, 510 F.3d 702, 711 (7th Cir. 2007) (ex-
plaining that a Rule 14 motion for severance is waived if
not renewed at the close of the evidence), the Rule
8 misjoinder aspect of the motion, though also not re-
newed, was properly preserved. See id. at 710 n.1 (“A
defendant need not renew a Rule 8 motion at the close
of the evidence to preserve the argument for appeal.”).
We review Blanchard’s misjoinder claim de novo,
focusing on the face of the indictment rather than the
evidence adduced at trial. Id. at 710; see also United States v.
Lanas, 324 F.3d 894, 899 (7th Cir. 2003). Federal Rule of
Criminal Procedure 8(a) permits joinder of offenses
where they are (1) “of the same or similar character,”
(2) “based on the same act or transaction,” or (3) “consti-
tute parts of a common scheme or plan.” We construe this
rule broadly in the interest of conserving judicial resources
and avoiding costly, duplicative trials. United States v.
Nettles, 476 F.3d 508, 516 (7th Cir. 2007); United States v.
Rollins, 301 F.3d 511, 518 n.1 (7th Cir. 2002). Even
where misjoinder occurs, we will not reverse unless the
defendant can show actual prejudice—i.e., that the error
“had substantial and injurious effect or influence in
determining the jury’s verdict.” Ross, 510 F.3d at 710-11
(citing United States v. Lane, 474 U.S. 438, 449 (1986)); see also
United States v. Hubbard, 61 F.3d 1261, 1271 (7th Cir. 1995).
No. 07-2780 11
The first obstacle to Blanchard’s misjoinder argument is
our presumption that, because of the close relationship
between drug trafficking and firearms offenses, joinder of
such offenses is ordinarily proper. See United States v.
Stokes, 211 F.3d 1039, 1042 (7th Cir. 2000). This presump-
tion arises from the “natural inferences that may be
drawn from the contemporaneous possession of guns
and drugs or drug paraphernelia: the firearm is an indica-
tion of drug activity, and participation in drug trafficking
supplies a motive for having the gun.” Id. (quoting Hub-
bard, 61 F.3d at 1270). Although that presumption might
be overcome by, for example, a significant temporal
disconnect between the alleged offenses, see Hubbard, 61
F.3d at 1271 (concluding that firearms and narcotics
charges were misjoined where nearly a year and a half
transpired between the two offenses), there was no such
disconnect here; the indictment alleged that the metham-
phetamine manufacturing and firearms offenses occurred
at approximately the same time, and evidence of both
offenses was recovered from the Roberts residence. See
Stokes, 211 F.3d at 1042; United States v. Windom, 19 F.3d
1190, 1197 (7th Cir. 1994) (explaining that “joinder of a
weapons offense with drug charges is proper under
Rule 8(a), especially when the weapons and drugs are
found in the same search”). Therefore, the district court
did not err in joining these offenses for trial under
Rule 8(a).
Moreover, even if the offenses had been misjoined, the
error would be harmless because Blanchard cannot show
prejudice. See, e.g., Ross, 510 F.3d at 710-11; Hubbard, 61
F.3d at 1272. Blanchard points out that, absent joinder of
12 No. 07-2780
the two counts, the drug offense could have been tried
without informing the jury that he was a convicted felon.
Conceding this point, we are not convinced that the jury’s
knowledge of Blanchard’s prior felony conviction had a
“substantial and injurious effect or influence” on their
deliberations. Ross, 510 F.3d at 711. As we explain in
further detail below, the evidence of Blanchard’s guilt
on both counts was considerable, mitigating any risk that
the jury’s decision was influenced by knowledge that
Blanchard had previously committed a felony. See id.
Furthermore, the jury was properly instructed to con-
sider each count and the corresponding evidence sepa-
rately, not allowing their decision on one count to color
their decision on the other. There is no reason to presume
that they did not adhere to these instructions. Id; see also
United States v. Coleman, 22 F.3d 126, 135 (7th Cir. 1994)
(explaining that where the “jury [is] instructed to con-
sider each count and the relating evidence separately . . .
there [is] no reason to suppose that it would disregard
this mandate” (citation omitted)).
To recap, the district court did not abuse its discretion in
denying Blanchard’s motion for a bill of particulars,
because Blanchard was properly apprised of the charges
against him and was the beneficiary of extensive pretrial
discovery that filled in any gaps in the somewhat-sparse
indictment; thus, he was not denied the opportunity to
adequately prepare for trial. In addition, Blanchard has
demonstrated neither misjoinder of the drug and firearms
counts nor prejudice. Accordingly, the district court did
not err in joining Counts One and Two for trial. Blanchard
waived the Rule 14 aspect of his motion by failing to
No. 07-2780 13
renew it at the close of the evidence, but even if it had
not been waived, his inability to show prejudice would
doom this claim as well.
B. Constructive Amendment of Indictment
Blanchard next argues that there was a fatal variance
between the date alleged in the indictment—on or about
December 30, 2004—and the evidence presented at trial
regarding the date (or dates) on which he manufactured
methamphetamine, thereby constructively amending the
indictment in violation of the Fifth Amendment.
Blanchard’s argument focuses primarily on Blanding’s
testimony. At trial, she testified that she manufactured
methamphetamine with Blanchard on several occasions
in November and December 2004, and that the last occa-
sion was on “Christmas Eve or right before Christmas.”
However, on cross-examination, Blanding conceded that
she could be no more specific than “on or before Christmas
Eve,” acknowledging that her memory was impaired
because she was using methamphetamine regularly in
late 2004. In addition, a government expert conceded
on cross-examination that he could not definitively
state when the “meth lab” at the Paxton residence was
created, and that it might have been created as many as
six months earlier. Thus, Blanchard argues, the govern-
ment’s evidence regarding methamphetamine manu-
facturing is too temporally indefinite—spanning a period
of up to six months—to sustain a conviction consistent
with the “on or about” date alleged in the indictment.
Constructive amendment of an indictment occurs
where the permissible bases for conviction are broadened
14 No. 07-2780
beyond those presented to the grand jury. United States v.
Folks, 236 F.3d 384, 390 (7th Cir. 2001). “To avoid running
afoul of the Fifth Amendment, the allegations in the
indictment and the proof at trial must match in order ‘to
insure that the defendant is not subject to a second prose-
cution, and to give the defendant reasonable notice so
that he may prepare a defense.’ ” Id. (quoting United States
v. McKinney, 954 F.2d 471, 480 (7th Cir. 1992)). However,
where an indictment alleges that an offense occurred “on
or about” a certain date, “the defendant is deemed to be
on notice that the charge is not limited to a specific date”
and “cannot make the requisite showing of prejudice
based simply on the fact that the government has failed
to prove a specific date.” Id. at 391 (quoting United States
v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988)). Accordingly,
where the “on or about” language is used, the govern-
ment need not prove the exact date of the offense “as long
as a date reasonably near that named in the indictment is
established.” United States v. Ross, 412 F.3d 771, 774 (7th
Cir. 2005) (emphasis added) (reciting the “canonical
formula” to be applied when the “on or about” language
is used in the indictment); see also Leibowitz, 857 F.2d at
379 (citing collected cases).
The question, then, is whether the government presented
evidence that would support a date “reasonably near” the
date specified in the indictment, and we have little
trouble answering this question in the affirmative.
Blanding’s testimony—that she and Blanchard manufac-
tured methamphetamine on approximately December 24,
2004—provided a reasonable basis for the jury to
conclude that Blanchard manufactured methamphet-
No. 07-2780 15
amine within days of the “on or about” date specified in
the indictment, December 30, 2004. Although Blanding
conceded on cross-examination that she could not pin-
point the exact date, such laser-like precision was not
necessary for her testimony to support a date “reasonably
near” that alleged in the indictment. See, e.g., Leibowitz,
857 F.2d at 379 (concluding that 21-day variance between
date proved at trial and “on or about” date alleged in
indictment was “reasonably near”). Moreover, the jury
was expressly instructed not to convict unless they con-
cluded that Blanchard manufactured methamphetamine
on a day “reasonably near” that alleged in the indictment.
Cf. Ross, 412 F.3d at 774-75 (jury instructions expressly
permitting more than four-year variance from “on or
about” date impermissibly amended indictment). Indeed,
because evidence was presented supporting a date “rea-
sonably near” that alleged in the indictment, and because
the jury was properly instructed on this issue, Blanchard’s
complaint is really directed to the facts found by the
jury; however, that is a battle that Blanchard lost at trial,
and which he may not re-fight here on appeal.
Finally, we note that one of the primary concerns under-
lying the prohibition on constructive amendments—the
impairment of the defendant’s ability to prepare his
defense—is simply not implicated here. See Folks, 236
F.3d at 392. As already noted, extensive pretrial discovery
afforded Blanchard more than sufficient notice of how
the government might attempt to prove its case at trial.
Indeed, Blanchard does not argue that he was unfairly
surprised by the evidence produced or the theories prof-
fered by the government at trial. For these reasons, there
was no constructive amendment of Blanchard’s indictment.
16 No. 07-2780
C. Introduction at Trial of Court’s
Suppression-Hearing Statements
Blanchard next challenges the introduction at trial of
certain statements originally made by the trial judge at a
pretrial suppression hearing, styling his argument in
terms of both judicial bias and prosecutorial misconduct.
Before turning to the merits of Blanchard’s arguments on
this point, some additional background is necessary.
As already discussed, at trial, Marshall Jr. offered
testimony that was damaging to his father’s case. With
respect to the firearms charge, he testified that his father
owned all but one of the firearms seized from the porch
area of the Roberts residence (the “porch firearms”), that
his father directed him to remove those firearms from
the residence in 2001 and return them in late 2004, and
that his father enjoyed unfettered access to the porch
area after September or October 2004. And with respect
to the methamphetamine manufacturing charge, Marshall
Jr. testified that he noticed certain physical changes in
his father, including weight loss and facial sores, in late
2004. He also testified regarding his discovery of certain
items in the Roberts residence, including the off-white
substance that later tested positive for ephedrine, that
led to the search of Blanchard’s two residences and his
subsequent arrest.
At the grand jury hearing nearly one year before trial, in
April 2005, Marshall Jr. had offered testimony largely
consistent with his eventual trial testimony. With respect
to the porch firearms, he testified that Blanchard owned
them and had ordered Marshall Jr.’s removal of them
from the Roberts residence in 2001; because Lori
No. 07-2780 17
(Blanchard’s ex-wife and Marshall Jr.’s mother) had moved
out of the house, Blanchard, a convicted felon, could no
longer plausibly deny possession by attributing owner-
ship to her. Thus, Marshall Jr. and his father moved the
guns to a family friend’s place of business. When that
friend died in 2004, Marshall Jr. testified, he obtained a
Firearm Owner’s Identification (FOID) card so that he
could retrieve the firearms and return them to the Roberts
residence while allowing his father, in the event that
the firearms were discovered by authorities, to plausibly
deny ownership/possession (distinct concepts which
Blanchard may have incorrectly conflated).
However, following the grand jury hearing, at a pretrial
suppression hearing on November 15, 2005, Marshall Jr.
offered a remarkably different version of events. He
testified that the porch firearms originally belonged to
his mother but had passed down to him when she left
the Roberts residence; his father was not part of the
purported chain of ownership. In addition, Marshall Jr.
testified that he removed those firearms from the Roberts
residence in 2001 and returned them in 2004 of his own
volition, without prompting or direction from his father.
Finally, he testified that in late 2004, the porch area of the
Roberts residence served as his “apartment,” and he
enjoyed exclusive access to that area by keeping it locked
and maintaining possession of the only keys. In short, after
testifying at the grand jury hearing that his father both
owned and controlled the porch firearms, Marshall Jr.
testified at the suppression hearing that his father did not
own, control, or even have physical access to them.
18 No. 07-2780
When Marshall Jr. altered his story at the November 15
suppression hearing, the government (unsurprisingly)
confronted him with his inconsistent grand jury testi-
mony. On cross-examination, the government reminded
Marshall Jr. that he was under oath and asked whether
he would like to alter his testimony in light of his previous
grand jury testimony.
Q. Do you want to change your testimony at all in
reference to your testimony that this house had
a separate apartment under your sole control
and that these guns were yours? Do you want
to alter that testimony at all?
A. I, I’m not sure. I don’t, I don’t understand.
...
Q. Do you want to be—do you want to persist in
stating that this house had been sectioned off
to where there’s an area—I believe [defense
counsel] referred to it as an apartment of yours
that you had sole access to and that these guns
were, were yours? Do you want to persist in
that testimony?
A. Yes.
(Suppression Hr’g Tr. 85-86.) The government then con-
fronted Marshall Jr. with specific portions of his prior
inconsistent testimony, including his indication that his
father owned the porch firearms. The government also
reminded Marshall Jr. of his testimony that, in order to
protect his father (a convicted felon) in the event that the
firearms were discovered by authorities, he and his
No. 07-2780 19
father had jointly removed the firearms from the Roberts
residence in 2001 and then returned them in 2004, only
after Marshall Jr. had procured an FOID card. During the
course of this questioning, the court occasionally inter-
jected its own questions, seeking clarification of Marshall
Jr.’s answers.
The trial judge’s comments that are the subject of
Blanchard’s current challenge came in response to a
defense counsel objection in the midst of this cross-exami-
nation. Defense counsel objected when the government
pointed out that Marshall Jr. had never described the
Roberts residence porch area as his exclusively controlled
“apartment” at the grand jury hearing, contending that
this did not tend to impeach Marshall Jr. The court over-
ruled that objection, and offered the following explana-
tory commentary:
I believe it is [impeachment]. The Court finds it to
be impeachment. The Court finds this witness not
to be credible and that the testimony he has given
today is not credible.
The Court’s had a chance to observe the manner
and demeanor of his testimony. The manner and
demeanor on direct was very assertive. . . . I deter-
mined that I would ask some questions. And as
soon as I began questions about the ownership of
the guns back in 2001—of course, I have no knowl-
edge of the grand jury testimony—all of a sudden,
the demeanor began changing dramatically, how
he hangs his head, how he looks, how his facial
mannerisms changed; and it was very obvious
20 No. 07-2780
to me after 13 years of being a criminal lawyer
and 17 years of being a judge—30 years of being
experienced—that his answers all of a sudden
became deceptive, less than credible.
And, of course, now [the prosecutor] has asked
him specific questions that lead me to the undeni-
able conclusion that he has not been credible and,
because he knew that his answers that he was
giving were not the same answers he had given
to the grand jury in April.
(Suppression Hr’g Tr. 92-93.) And at the conclusion of the
cross-examination, the government asked, “So would it
be accurate to say . . . that the testimony you’ve given
today under oath before this Court has been false and
misleading?” (Id. 100.) The court intervened, interposing
a Fifth Amendment objection on Marshall Jr.’s behalf.
Following the conclusion of the November 15 hearing,
Marshall Jr. had time to ponder the comments of the court
and the government, and he became concerned that his
testimony might lead to legal trouble; soon thereafter, he
contacted the government’s case agent to express his
concern. They agreed that Marshall Jr. would meet with
the case agent and the prosecutor at the government’s
office, and that meeting took place a few days later. At
that meeting, the case agent and the prosecutor advised
Marshall Jr. that they believed he had testified untruthfully
at the suppression hearing and that he could face perjury
charges. Marshall Jr. agreed to provide a tape-recorded
statement correcting those portions of his November 15
testimony that had been untruthful.
No. 07-2780 21
On December 12, 2005, at a follow-up hearing to com-
plete argument on Blanchard’s pending suppression
motions, the court allowed the government to reopen
cross-examination of Marshall Jr. On the reopened cross-
examination, Marshall Jr. recanted those portions of the
November 15 testimony that had contradicted his grand
jury testimony. For example, Marshall Jr. testified that
his father owned almost all of the porch firearms, that his
father directed the 2001 removal and 2004 return of those
firearms, and that his father enjoyed unfettered access
to the porch area beginning sometime around October 2004
(when Marshall Jr. relocated his bedroom to another part
of the house). Marshall Jr. also testified that, following his
grand jury testimony, his father had not-so-subtly pres-
sured him to change his testimony, telling him that the
guns were his and that the porch area was his “apartment.”
As previously noted, at trial, Marshall Jr. testified on
behalf of the government and offered a version of events
consistent with his grand jury testimony and his testimony
at the December 12 hearing. In addition, he explained that
he had testified untruthfully at the November 15 hearing,
and that on cross-examination that day, the government
had exposed discrepancies between his testimony and his
prior grand jury testimony. He further testified that,
following the November 15 hearing, he discussed his
concerns about having testified untruthfully with his
mother. Then, he explained, he contacted the government
to express his concern that he might have gotten himself
into trouble by testifying untruthfully, hoping to “resolve
the issue.” Marshall Jr. further testified that he was
recalled to the stand at the December 12 hearing, and at
22 No. 07-2780
that time, he corrected those portions of his November 15
testimony that were untruthful.
As might be expected, defense counsel then sought to
impeach Marshall Jr.’s testimony by showing his incentive
to cooperate with the government based upon his fear of
prosecution for perjury. First, defense counsel asked
whether, following the November 15 hearing, anyone
from the government initiated contact with Marshall Jr.
either before or as he left the courtroom, and he indicated
that they did not. Defense counsel then asked whether,
at Marshall Jr.’s meeting with the case agent and the
prosecutor, the government told him that he could be
charged with perjury for lying under oath, and he indi-
cated that they did. He also testified that they discussed
potential penalties, including a fine and jail time. Marshall
Jr. acknowledged the “cloud of a perjury charge” that
followed these conversations and his desire to obtain
“some mercy for what [he] did” by cooperating with the
government.
On redirect, the government immediately sought to
clarify who had first suggested that Marshall Jr.’s testi-
mony at the November 15 hearing may have been untruth-
ful. When Marshall Jr. responded, “The judge and you,”
the prosecutor was not satisfied; he asked Marshall Jr. if
he remembered what the judge had said to him. Defense
counsel promptly objected and requested a sidebar, but
the judge rejected that request, stating, “No. If I said
something, it will be in the record, and you have a copy
of the record. Everybody’s been talking about what
everybody said. So if you have what I said, it’s on the
No. 07-2780 23
record. It can be put before the jury.” (Trial Tr. 221.) Then,
after a second rejected request for a sidebar,2 and over
defense counsel’s repeated objections, the prosecutor
read aloud the entirety of the trial judges’s suppression-
hearing comments indicating his belief that Marshall Jr.
was testifying untruthfully. Although we have already
recounted those comments above and need not repeat
them in full here, the last of those comments, as quoted by
the prosecutor at trial, bears repeating:
And, of course, now [the prosecutor] has asked
him specific questions that lead me to the undeni-
able conclusion that he has not been credible
because he knew that his answers that he was giving
were not the same answers that he had given to the
grand jury in April.
(Trial Tr. 223) (emphasis added).
Adding another wrinkle to this already unusual event,
during the prosecutor’s reading of the court’s suppression-
2
We have previously expressed our concern that a district
court’s refusal to entertain any sidebars, particularly where the
trial judge’s own comments or questions become the subject of
a potential objection, may put defense counsel in an “awkward
position.” See United States v. McCray, 437 F.3d 639, 644 (7th Cir.
2006) (a case in which the same district judge presided). We
reiterate that concern here; a full explanation of defense coun-
sel’s objection in the presence of the jury risked the same
prejudice to the defendant as the prosecutor’s recitation of the
court’s comments. Under these circumstances, a sidebar
could have been particularly useful in “avoid[ing] the risk of
unforeseen prejudice.” See id.
24 No. 07-2780
hearing comments, the trial judge characterized his
comments, in response to a defense counsel objection and
in the presence of the jury, as “judicial testimony.” The
court stated, “It’s my statement. You’ve got the record. Has
he misread it? . . . It’s a direct statement of the Court in
a judicial proceeding. You were present. You have a copy
of it. Has he misread what I said? . . . This is reading
judicial testimony.” 3 (Trial Tr. 222-23) (emphasis added).
After the prosecutor finished reading the court’s
suppression-hearing comments, he asked whether Mar-
shall Jr. recalled the judge making those comments at the
November 15 hearing, and Marshall Jr. indicated that he
did. And the prosecutor pressed further, asking:
Q. [W]as that the first person to raise any issue
with you about whether or not you were telling
the truth?
A. Yes.
Q. It wasn’t me, was it?
A. No.
Q. It wasn’t [the government’s case agent], was it?
3
Given Rule 605’s prohibition on a trial judge offering testi-
mony, this characterization should have immediately raised red
flags. See Fed. R. Evid. 605 (“The judge presiding at the trial
may not testify in that trial as a witness.”). Although Blanchard
failed to raise this specific objection at trial, he did not need to
do so in order to preserve the issue for review. See id. (“No
objection need be made in order to preserve this point.”).
No. 07-2780 25
A. No.
(Trial Tr. 224.)
During a break in the proceedings following the con-
clusion of Marshall Jr.’s testimony, and outside the pres-
ence of the jury, the trial judge sought to clarify his ratio-
nale for permitting the introduction of his suppression-
hearing commentary:
The Court allowed [the prosecutor] to read the
Court’s statements into the record because there
had been much testimony concerning the Novem-
ber 15th testimony of Marshall Blanchard Jr. . . . .
[Defense counsel] determined as a trial tactic to
lead the jury to believe that somehow Mr.
Blanchard Jr. after he had left court was either
contacted or discussed with [the prosecutor] or
[the case agent] for the first time concerning his
testimony. That clearly opened the door for [the
prosecutor] to read into the record the Court’s
comments from November 15th because that was
clearly the first time Marshall Blanchard was
confronted with what this Court believed . . . to be
perjury. . . . I did not want to rule this way on
the record in front of the jury as to why it was
allowing [the prosecutor] to proceed because the
inference of the Court’s ruling could have been
prejudicial to the defendant. So the Court merely
wanted [the prosecutor] to read into the record
accurately and clearly the Court’s comments,
which were no surprise to [defense counsel]. And
while [defense counsel] protested loudly, causing
26 No. 07-2780
the Court to have to make it clear, the only objec-
tion he could have was whether it was being read
accurately. I’m doing this out of the presence of
the jury now so as not to prejudice the defendant
for the trial tactic that opened the door.
(Trial Tr. 255-56.)
Blanchard now contends that the prosecutor’s use at trial
of the court’s suppression-hearing commentary—what the
trial judge characterized as his “judicial testimony”—
amounted to both judicial bias and prosecutorial mis-
conduct. Blanchard argues that the introduction of the
court’s statements effectively constituted a judicial en-
dorsement of the most damaging version of Marshall Jr.’s
testimony and thereby deprived him of a fair trial. In
addition, at trial, Blanchard objected on the grounds of
relevance and unfair prejudice. And there is yet another
evidentiary issue presented where so-called “judicial
testimony” is put before the jury, as in this case. See Fed. R.
Evid. 605. Before considering the broader fair-trial issues,
we first take up the narrower, threshold evidentiary issues,
which we review for an abuse of discretion. See United
States v. Samuels, 521 F.3d 804, 813 (7th Cir. 2008).
Federal Rule of Evidence 605 prohibits a presiding
district court judge from testifying at trial as a witness or
engaging in equivalent conduct. See United States v. Sliker,
751 F.2d 477, 499 (2d Cir. 1984) (discussing the purpose of
Rule 605 in light of the advisory committee’s notes).
Although a district court judge may facilitate the jury’s
understanding of the case by questioning witnesses and
explaining, summarizing, and commenting on the evi-
No. 07-2780 27
dence, United States v. Paiva, 892 F.2d 148, 159 (1st Cir.
1989) (citing Quercia v. United States, 289 U.S. 466, 469-70
(1933)); United States v. Nickl, 427 F.3d 1286, 1293 (10th Cir.
2005), it is improper for the judge to add to the evidence by
assuming the role of a witness, Nickl, 427 F.3d at 1293;
Paiva, 892 F.2d at 159; Sliker, 751 F.2d at 499. Where a trial
judge’s comments are based upon his own personal
knowledge of matters external to the trial, those com-
ments may constitute impermissible judicial testimony.
See, e.g., United States v. Berber-Tonico, 510 F.3d 1083, 1091
(9th Cir. 2007) (concluding that trial judge “violated Rule
605 when he interjected his own observations” on facts
which were neither in the record nor reasonably derived
therefrom, but did not violate Rule 605 where he merely
summed up the evidence); Nickl, 427 F.3d at 1293-94
(noting that “presiding judge’s commentary . . . added
new evidence which the prosecution was otherwise
unable to establish”).
In this case, we conclude that the introduction of the trial
judge’s suppression-hearing comments amounted to
impermissible judicial testimony. First, the judge’s com-
ments were based upon and incorporated his own
personal observations of Marshall Jr. at the November 15
suppression hearing; indeed, the trial judge’s comments
indicated that his opinion of Marshall Jr.’s credibility was
based largely upon shifts in Marshall Jr.’s “manner and
demeanor” that day. Such comments violate Rule 605 by
“add[ing] new evidence which the prosecution was
otherwise unable to establish.” Nickl, 427 F.3d at 1293-94;
see also Berber-Tonico, 510 F.3d at 1091.
28 No. 07-2780
While it is true that the prosecutor, rather than the
trial judge, read the judge’s suppression-hearing com-
ments into the record at trial, this in no way alters our
conclusion. In the presence of the jury, the trial judge
acknowledged that the suppression-hearing comments
were his own, insisted that the only valid objection to the
comments’ introduction could be if they were not read
“word for word,” and characterized the comments as his
“judicial testimony.” Under such circumstances, Rule 605
is violated; the rule would serve little purpose if it were
violated only where a judge observes all the formali-
ties—taking of an oath, sitting in the witness chair, etc.—of
an ordinary witness. Cf. Nickl, 427 F.3d at 1292-93 (finding
that the trial judge violated Rule 605 when he interrupted
the cross-examination of a witness and offered, in
response to defense counsel’s question, his own opinion
on an ultimate factual issue).
Before turning to our harmless error analysis, we pause
to consider Blanchard’s additional argument that the
danger of unfair prejudice from the “judicial testimony”
significantly outweighed its probative value, compelling
exclusion. See Fed. R. Evid. 403. We first note that the
trial judge’s suppression-hearing comments were of
minimal relevance; the saga of Marshall Jr.’s shifting
testimony was already before the jury, and the judge’s
credibility evaluation had little, if any, “tendency to make
the existence of any [material fact] more probable or less
probable than it would [have been] without the evidence.”
See Fed. R. Evid. 401. The government concedes as much
by not arguing that this evidence had any independent
relevance; instead, following the district court’s rationale,
No. 07-2780 29
the government insists that defense counsel “opened the
door” to this line of questioning. The government cites
to United States v. Peco, 784 F.2d 798, 805 (7th Cir. 1986), for
the proposition that “[w]hen a party opens up a subject,
even though it may not be strictly relevant to the case, he
cannot complain on appeal if the opposing party intro-
duces evidence on the same subject.” Id. (quoting United
States v. Carter, 720 F.2d 941, 948 (7th Cir. 1983)). And the
government asserts that defense counsel’s cross-examina-
tion of Marshall Jr. opened the door to its attempt to
show that it was the district court, rather than the gov-
ernment, who first challenged Marshall Jr.’s truthfulness
at the November 15 hearing.
We disagree. Although the trial transcript reveals that
defense counsel asked Marshall Jr. whether anyone
from the government initiated contact with him
following the November 15 hearing, he responded in the
negative. Indeed, Marshall Jr. indicated that he contacted
the government on his own, after discussing his con-
cerns with his mother, in an effort to correct his testimony.
And although Marshall Jr. then testified that, at his meet-
ing with the government, they discussed potential
perjury charges and corresponding penalties, this went to
the issue of Marshall Jr.’s motivation for changing his
testimony, not the issue of who first suggested that he
had been untruthful at the November 15 hearing.
In addition, the government’s “open the door” argument
rests upon a flawed factual premise; in fact, it was the
government, not the trial judge, who first challenged
Marshall Jr.’s truthfulness when the prosecutor con-
30 No. 07-2780
fronted Marshall Jr. with his prior inconsistent grand
jury testimony at the November 15 hearing. In so doing,
the government repeatedly asked Marshall Jr. whether,
in light of his earlier testimony, he wished to change any
of his testimony that day. It was only after defense
counsel objected to this line of questioning that the court
offered its own opinion of Marshall Jr.’s truthfulness.
Moreover, even if defense counsel had somehow inti-
mated on cross-examination that the government first
challenged Marshall Jr.’s truthfulness, this would have
come as no great surprise to the jury, because the govern-
ment’s direct examination of Marshall Jr. seemed to
establish just that:
Q. [A]fter [defense counsel] finished asking you
his questions [at the November 15 hearing],
did I have an opportunity to ask you ques-
tions?
A. Yes.
Q. And did you know at the time that, whether or
not the government had in its possession a full
transcript of everything you said before the
grand jury?
A. I was—I was pretty sure you did, but I wasn’t
sure entirely.
Q. And when I asked you questions that day, did
I ask you, or point out and ask you to explain
the difference between what you told the
grand jury under oath six months earlier and
what you told the judge under oath that day?
No. 07-2780 31
A. Yes.
Q. Did I ask you those questions?
A. Yes.
Q. Were you able to explain the difference?
A. No.
Q. How was that day for you?
A. One of the worst days of my life.
(Trial Tr. 128-29.) The absence of a factual underpinning
for the government’s argument only strengthens our
conclusion; there was no compelling justification for
the introduction of the court’s statements.
And a compelling justification was required, because
not only was the trial judge’s suppression-hearing com-
mentary of dubious relevance, but the danger of unfair
prejudice was unquestionably high. See Fed. R. Evid. 403
(relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice”). As explained further below, the introduction
of this evidence risked placing the weight of the court’s
authority behind the government-friendly version of
Marshall Jr.’s testimony; thus, there was a significant risk
of unfair prejudice to the defendant. Cf. United States v.
Martin, 189 F.3d 547, 553 (7th Cir. 1999) (“Because trial
judges wield substantial influence over juries . . . . [a] judge
cannot assume the role of an advocate for either side . . . .”).
Therefore, we conclude that the introduction of the
trial judge’s suppression-hearing comments was erro-
neous under Rules 605 and 403, and the only re-
32 No. 07-2780
maining question is whether this error was nonetheless
harmless. “The test for harmless error is whether, in the
mind of the average juror, the prosecution’s case would
have been significantly less persuasive had the improper
evidence been excluded.” United States v. Emerson, 501
F.3d 804, 813 (7th Cir. 2007) (internal quotation marks
omitted) (quoting United States v. Owens, 424 F.3d 649, 656
(7th Cir. 2005)); see also Fed. R. Crim. P. 52(a) (“Any
error . . . that does not affect substantial rights must be
disregarded.”). At the outset, we note that it is difficult to
imagine a scenario in which the court’s pronouncements
on the credibility of a key government witness could fail
to influence the jury. Indeed, Rule 605 is intended to
guard against the “prejudice which may arise . . . because
of the judge’s influential position with the jury.” Nickl, 427
F.3d at 1293 (citing Fed. R. Evid. 605 advisory committee’s
note). And the magnitude of this influence is difficult to
overstate; as the Supreme Court has explained, “The
influence of the trial judge on the jury is necessarily and
properly of great weight and his lightest word or intima-
tion is received with deference, and may prove control-
ling.” Quercia, 289 U.S. at 470 (internal quotation omitted);
see also United States v. Curry, No. 07-2455, slip op. at 14
(7th Cir. Aug. 15, 2008) (noting that, because “trial judges
wield substantial influence over juries,” a judge “should
take special care not to indicate his beliefs about a wit-
ness’ honesty” (quotation omitted)); Martin, 189 F.3d at 553
(noting judge’s “substantial influence” over jury and
consequent need for the judge to avoid assuming the
role of advocate); United States v. Hickman, 592 F.2d 931,
933 (6th Cir. 1979) (noting that a trial judge’s “position
before a jury is overpowering”).
No. 07-2780 33
The potentially “overpowering” influence of the trial
judge on the jury takes on added significance because of
the nature of Marshall Jr.’s shifting testimony in this case.
His pretrial and trial testimony presented essentially two
stories; first, at the grand jury hearing, he told the story
favorable to the government. He then reversed course at
the November 15 suppression hearing, contradicting
portions of his grand jury testimony in a manner that
strengthened his father’s defense. He then reversed course
once again, disavowing his November 15 testimony and
essentially re-adopting the story he told before the
grand jury, a story that he stuck to at trial. And naturally,
defense counsel sought to show on cross-examination that
Marshall Jr. had an incentive to change his November 15
testimony after discussing potential perjury charges with
the government. Given this context, the introduction of
the trial judge’s earlier comments—expressing his unequiv-
ocal belief that Marshall Jr. was untruthful in departing
from his grand jury testimony at the November 15
hearing—conveyed, at a minimum, judicial disapproval
of the most defendant-friendly version of Marshall Jr.’s
testimony. At worst, it effectively stamped the
government-friendly version of Marshall Jr.’s testimony
with the seal of judicial imprimatur. In this vein, the last
statement from the court’s suppression-hearing com-
ments—indicating the court’s belief that Marshall Jr. was
not credible “because he knew that his answers that he
was giving were not the same answers that he had given to the
grand jury in April” (Trial Tr. 223) (emphasis added)—is
particularly damning, because it seemingly endorses the
government-friendly version of Marshall Jr.’s testimony.
34 No. 07-2780
Thus, in allowing his suppression-hearing comments to
come in before the jury, the trial judge placed not just a
thumb, but a very heavy fist, on the scales of justice,
tipping the balance firmly in the government’s favor. Cf.
United States v. Verser, 916 F.2d 1268, 1272-73 (7th Cir. 1990)
(“Fundamental to the right to a fair trial” is the court’s
obligation to avoid “giv[ing] the impression to the jury
that the judge believes one version of the evidence and
disbelieves or doubts another.” (quotation omitted)).
And Marshall Jr. was not just a key government witness,
but, at least with respect to the firearms charge, the star;
his testimony was crucial to establishing Blanchard’s
control over the porch firearms. Although the handgun
seized from Blanchard’s bedroom might provide an
independent basis to sustain the firearms conviction
for sufficiency-of-the-evidence purposes, see United
States v. Alanis, 265 F.3d 576, 592 (7th Cir. 2001) (finding
recovery of gun from defendant’s bedroom constituted
sufficient evidence of constructive possession), the gov-
ernment focused its efforts at trial on the porch firearms.
Marshall Jr.’s testimony regarding his father’s ownership,
control of, and access to those firearms was the lynchpin
of the government’s case. And although Marshall Jr.’s
testimony was somewhat less important with respect to
the methamphetamine manufacturing charge, it was
nonetheless significant. Without his testimony, the gov-
ernment’s case would have rested even more heavily on
Blanding, a witness whose credibility was somewhat
compromised by the jury’s knowledge that she was a
past methamphetamine user who had entered into an
immunity agreement with the government. Blanding’s
account of the manufacturing arrangement—that
No. 07-2780 35
Blanchard facilitated and participated in the manu-
facture of methamphetamine in exchange for a share of
the product—was bolstered by Marshall Jr.’s testimony
regarding his father’s behavioral and physical changes;
those changes supported an inference of the sort of
regular methamphetamine use that might motivate one
to encourage and participate in manufacture at his own
residence. Thus, the prejudicial effect of the court’s argu-
able endorsement of Marshall Jr.’s grand jury testimony
cannot be neatly confined to the felon-in-possession charge.
The government’s emphasis on Marshall Jr.’s testimony
at trial confirms his importance to the government’s
overall case. He was not only the first witness called by
the government at trial, but also a point of emphasis in
closing argument, where the prosecutor stated: “Finally
and most importantly, you have to consider the testi-
mony of the defendant’s own son. . . . There can be no
more compelling evidence in this case than the testimony
of Marshall Jr., the agony that was vivid from his testi-
mony.” (Trial Tr. 871, 873.) The prosecutor reminded
the jury that Marshall Jr. had testified unfavorably to his
father before the grand jury with respect to both the
drug manufacturing and felon-in-possession charges
before changing his testimony at the November 15 hear-
ing. Then, the prosecutor delivered a final reminder of the
trial judge’s suppression-hearing comments: “On Novem-
ber 15th of last year, Marshall Jr. comes into this courtroom
before [the trial judge] and lies under oath for his dad. . . .
And it wasn’t the government who suggested—who first
suggested that he wasn’t telling the truth. You heard what
happened during that hearing.” (Trial Tr. 872) (emphasis
added). This comment provided one last, potentially
36 No. 07-2780
devastating reminder that the trial judge had effectively
endorsed the grand-jury, government-friendly version of
Marshall Jr.’s testimony.
And finally, the court did not instruct the jury in a
manner sufficient to remedy the potential prejudice.
First, the court failed to provide a timely limiting instruc-
tion (or any at all, for that matter) directing the jury to
consider the court’s suppression-hearing comments only
for the purpose of establishing who first challenged
Marshall Jr.’s truthfulness.4 See Nickl, 427 F.3d at 1295
(finding Rule 605 violation was not harmless partly
because “the judge offered no specific curative instruc-
tion which could have overcome his error”); cf. Curry,
No. 07-2455, slip op. at 16-17 (where trial judge’s explana-
tion of the concept of hearsay might have been inter-
preted as impugning the credibility of the defendant,
immediate and lengthy curative instruction helped to
avoid reversible error, although it was noted to be a “close
call”). Where the court’s comments were introduced only
4
The trial judge’s failure to provide a timely limiting instruc-
tion is particularly puzzling in light of his decision to promptly
“complete the record” at the next break in the proceedings.
Outside the presence of the jury, he explained that he had
permitted the introduction of his suppression-hearing comments
solely for the limited purpose of establishing who first chal-
lenged Marshall Jr.’s truthfulness at the November 15 hearing.
If the limited purpose of this evidence was of such importance
that it required a detailed explanation in the record, then
surely it was significant enough to merit a timely limiting
instruction to the jury.
No. 07-2780 37
for this limited purpose, rather than the broader purpose
of sharing the court’s credibility evaluation of a crucial
government witness, such an instruction may have been
helpful in alleviating the potential prejudice. Cf. United
States v. Simpson, 479 F.3d 492, 500 (7th Cir. 2007) (discuss-
ing failure to provide limiting instruction in analogous
Rule 404(b) context). In the final jury instructions, the
court did offer the following generic instructions:
Nothing I say now and nothing I said or did during
the trial is meant to indicate any opinion on my
part about what the facts are or about what your
verdict should be. The evidence consists of the
testimony of the witnesses, the exhibits admitted
in evidence, and a stipulation.
See Seventh Circuit Pattern Criminal Jury Instructions 1.01,
1.02 (1999). In the unusual context presented here, we
find these instructions insufficient to remedy the
potential prejudice. First, although we ordinarily presume
that jurors follow instructions, see Ross, 510 F.3d at 711, it
is impossible to say—particularly in light of the trial
judge’s characterization of his comments as “judicial
testim ony”— w hether a layperson juror w ou ld
interpret these instructions as a command to disregard
the so-called “judicial testimony” or an invitation to treat
it as evidence. Second, even if the trial judge had not
characterized his comments as “judicial testimony,” it is
doubtful that these generic instructions would have
been sufficient, because they were “neither prompt,
specific, nor emphatic.” Nickl, 427 F.3d at 1295 (finding
similar generic instruction insufficient to cure prejudice
38 No. 07-2780
caused by Rule 605 violation); see also Quercia, 289 U.S. at
472 (“Nor do we think that the error was cured by the
statement of the trial judge that his opinion of the evi-
dence was not binding on the jury . . . . His definite and
concrete assertion of fact, which he had made with all the
persuasiveness of judicial utterance . . . was not with-
drawn.”).
In short, we conclude that the trial judge abused his
discretion by allowing the introduction of his own
suppression-hearing comments on the credibility of a key
government witness, and this error was not harmless. In
light of this conclusion, we need not reach the question
of whether this error constituted judicial bias or pros-
ecutorial misconduct. However, this case sounds a cau-
tionary note for district court judges, who must remain
alert to the potential impact of their comments on juries
and the consequent need to avoid the appearance of
partiality to either side. See McCray, 437 F.3d at 643;
United States v. Washington, 417 F.3d 780, 784 (7th Cir.
2005).
D. Sufficiency of the Evidence
Before concluding, we briefly address Blanchard’s
sufficiency-of-the-evidence challenge to both convic-
tions.5 In challenging the sufficiency of the evidence,
5
In light of our conclusion regarding the improper introduc-
tion of the court’s suppression-hearing comments, this might
(continued...)
No. 07-2780 39
Blanchard faces a “daunting task.” United States v.
Wortman, 488 F.3d 752, 754 (7th Cir. 2007) (citation omit-
ted). On review of such a challenge, we view the evidence
and all reasonable inferences derived therefrom in the
light most favorable to the government, defer to the
jury’s credibility determinations, and overturn a verdict
“only when the record contains no evidence, regardless
of how it is weighed, from which the jury could find guilt
beyond a reasonable doubt.” United States v. Duran, 407
F.3d 828, 839 (7th Cir. 2005) (quoting United States v.
Jackson, 177 F.3d 628, 630 (7th Cir. 1999)); see also United
States v. Wantuch, 525 F.3d 505, 519 (7th Cir. 2008). In other
words, we will reverse “only if the fact finder’s take on
the evidence was wholly irrational.” United States v.
Bustamante, 493 F.3d 879, 884 (7th Cir. 2007) (internal
quotation omitted).
Under this exceedingly deferential standard of review,
we conclude that the district court did not err in denying
Blanchard’s Rule 29 sufficiency-of-the-evidence motion.
Blanding’s testimony, coupled with the methamphetamine-
related evidence recovered from both Blanchard’s resi-
dences, provided evidence in support of Count One. And
Marshall Jr.’s testimony, coupled with the seizure of the
firearms from Blanchard’s Roberts residence, provided
evidence of constructive possession of the porch fire-
5
(...continued)
appear unnecessary. However, if Blanchard prevailed on this
challenge, he would be entitled to a judgment of acquittal, and
therefore, we find it appropriate to address his argument.
40 No. 07-2780
arms, in support of Count Two. See United States v. Thomas,
321 F.3d 627, 636 (7th Cir. 2003) (constructive possession
exists where one has “the power and the intention at
a given time to exercise dominion and control over an
object, either directly or through others” (quotation
omitted)); Bustamante, 493 F.3d at 889 (explaining that the
government “can prove constructive possession of a gun
by showing that police recovered the gun at the defen-
dant’s residence” (citing United States v. Kitchen, 57 F.3d
516, 521 (7th Cir. 1995)). In sum, this evidence provided
a sufficient, rational basis for the case to go to the jury
for deliberation; indeed, absent the strange and unusual
events described in the foregoing section, Blanchard’s
convictions would be affirmed. However, that the jury’s
decision may have been rational does not mean that it
was inevitable, and because we are troubled that the
introduction of the trial judge’s suppression-hearing
commentary may have influenced the outcome of the trial,
Blanchard’s convictions cannot stand.6
6
We briefly address two additional arguments that were
included, almost as an afterthought, at the close of the Appel-
lant’s brief. Blanchard argues that his civil and possessory rights
have been fully restored under Illinois law, precluding his
conviction under 18 U.S.C. § 922(g)(1), but acknowledges that
his argument is foreclosed by our decision in Melvin v. United
States, 78 F.3d 327 (7th Cir. 1996). He also contends (without
explanation or citation to authority) that § 922(g)(1) exceeds the
scope of Congress’s power under the Commerce Clause. But
“movement in interstate commerce is all the Supreme Court
(continued...)
No. 07-2780 41
III. Conclusion
For the foregoing reasons, we V ACATE the Defendant’s
convictions and R EMAND for a new trial. Circuit Rule 36
shall apply on remand.
6
(...continued)
requires under the statute,” United States v. Jackson, 479 F.3d 485,
492 (7th Cir. 2007) (citing Scarborough v. United States, 431 U.S.
563 (1977)), and Blanchard does not dispute the evidence of
interstate movement of the firearms presented at trial. Blanchard
indicates that he has raised these arguments in order to
preserve them in the event of a change in the law, and we
reciprocate his perfunctory development of these arguments
with our rejection of them here.
9-8-08