United States v. Venable, Antonio L. ( 2001 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2001 Decided November 6, 2001
No. 00-3089
United States of America,
Appellee
v.
Antonio L. Venable,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00038-01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the brief was A.J.
Kramer, Federal Public Defender. Valencia R. Rainey,
Assistant Federal Public Defender, entered an appearance.
Suzanne Grealy Curt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney at the time the brief was filed, and John
R. Fisher, Roy W. McLeese III, and James G. Flood, Assis-
tant U.S. Attorneys.
Before: Tatel and Garland, Circuit Judges, and
Williams,* Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: A jury found Antonio Venable
guilty of one count of unlawful possession of a firearm by a
convicted felon, in violation of 18 U.S.C. s 922(g)(1). Venable
challenges his conviction on the ground that, during closing
argument, the prosecutor improperly suggested that the jury
could acquit Venable only if it disbelieved three government
witnesses. Because defense counsel did not object to the
prosecutor's statement, and because the statement did not
rise to the level of reversible error under Federal Rule of
Criminal Procedure 52(b), we affirm.
I
On January 4, 2000, Talmadge Watson, the manager of a
youth recreation center in the District of Columbia, made a
911 call to the Metropolitan Police Department. Watson
reported that a man with a gun was inside the center. He
described the person as a black male, wearing a black leather
jacket, a baseball cap with the letter "P" on it, and dark
trousers. That description was broadcast over the police
radio.
Officer James Thomas responded to the broadcast and
reached the recreation center at approximately 6:00 p.m. At
trial, Thomas testified that, while walking toward the center,
he saw a man leave the building who appeared to match the
broadcast description. After noticing other police officers
arrive on the scene, the man turned around and reentered the
building. Officer Thomas then went into the center and,
together with Officer Christopher Baxa, began to search for
exits through which the suspect might have fled.
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* Senior Circuit Judge Williams was in regular active service at
the time of oral argument.
At this point, Watson, the manager who had made the
original 911 call, approached Baxa and told him that the
suspect was at the front door. Officers Thomas and Baxa
went back to the front of the building and detained defendant
Venable, who was standing at the door. Venable was wearing
dark jeans and a baseball cap with the letter "P," but not the
black leather jacket that Thomas had seen on the man
previously standing outside. While the cold and misty weath-
er warranted a coat, Venable was wearing only a T-shirt.
Both Thomas and Baxa testified that, although they had not
said a word about a black jacket, Venable spontaneously told
them that he did not have one and that he had not worn a
coat to the recreation center that day.
The officers then began searching the center for the black
leather jacket. Thomas soon found one, slightly wet, in a pile
of coats on a pool table in the center's game room. According
to Thomas' testimony, the jacket appeared to be the one worn
by the man he had seen outside the center; Thomas did not,
however, definitively identify Venable as that man. Wrapped
inside the jacket, which contained no identifying information,
was a loaded semi-automatic pistol.
At trial, Venable's prior felony conviction was the subject of
a stipulation between the parties. The chief witnesses
against the defendant were the two police officers, who
testified as set forth above, and Watson, who testified that he
had seen Venable with the gun. The jury was told that
Watson himself had two prior convictions: for making a false
statement or misrepresentation to the police involving the use
of a false driver's license, and for attempted possession of
PCP. The principal defense witnesses were two recreation
center employees, who described themselves as friends of
Venable. Derrall Joyner, an assistant manager at the center,
testified that Venable had come into the center without a
jacket and had never entered the game room. Jenine Davis,
a recreation specialist, testified that, at a meeting she attend-
ed with Watson and defense counsel, Watson agreed that
Venable had not been wearing a black jacket and had not
been in the game room. Upon cross-examination, Watson
denied making such a statement.
During closing argument, the prosecution maintained that
Watson, despite his run-ins with the law, was a courageous
man who deserved praise for his concern about the recreation
center's safety, and who had no motive to notify the police
falsely that Venable had a gun. The prosecution further
suggested that, by contrast, the defense witnesses had mo-
tives to fabricate because they were friends of Venable and
because Joyner resented the police's intrusion into the center.
The defense countered that Watson had lied in the past, and
that the jury should instead believe Joyner and Davis.
In rebuttal, the Assistant United States Attorney continued
to stress the credibility of the government's witnesses. He
then made the statement that is at issue on this appeal: "For
you to find Mr. Venable not guilty, you must disbelieve the
testimony of Mr. Watson, Officer James Thomas, and Officer
Baxa." Defense counsel did not object, and the jury convict-
ed Venable of violating 18 U.S.C. s 922(g)(1).
II
Because defendant's counsel did not object to the chal-
lenged statement, we review it only for plain error under
Federal Rule of Criminal Procedure 52(b). See Johnson v.
United States, 520 U.S. 461, 466 (1997). That standard
requires: "(1) 'error,' (2) that is 'plain,' and (3) that 'affect[s]
substantial rights.' " Id. at 467 (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)). The third condition "in
most cases ... means that the error must have been prejudi-
cial: It must have affected the outcome of the district court
proceedings." Olano, 507 U.S. at 734. Moreover, it is "the
defendant rather than the Government who bears the burden
of persuasion with respect to prejudice." Id. Finally, "[i]f all
three conditions are met, an appellate court may then exer-
cise its discretion to notice a forfeited error, but only if (4) the
error 'seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.' " Johnson, 520 U.S. at
467 (quoting Olano, 507 U.S. at 732) (other citations omitted).
A
Venable contends that the prosecutor's remark was plain
error because it had the effect of "diluting" the government's
burden of proof.1 Read with a grammarian's eye, the prose-
cutor's statement was surely error. Telling the jury that in
order to acquit Venable it would have to disbelieve Watson,
Thomas, and Baxa was logically equivalent to saying that the
jury would have to convict Venable if it believed Watson,
Thomas, or Baxa. That proposition was false. The testimo-
ny of Thomas or Baxa alone might well have been insufficient
to find the defendant guilty and, in any event, would certainly
not have compelled a guilty verdict. Moreover, the prosecu-
tor was wrong not just in using the conjunction "and," but
also in using the verb "disbelieve." The jury did not need to
disbelieve Watson or any other witness to acquit Venable.
Reasonable doubt about Venable's guilt was all that was
required. Cf. United States v. Rawlings, 73 F.3d 1145, 1148-
49 (D.C. Cir. 1996) ("[T]he jurors were not, as the court
erroneously instructed, required to decide whom to be-
lieve.... They had to determine only whether the Govern-
ment proved what it alleged had happened beyond a reason-
able doubt.").
To conclude that the prosecutor's statement was technically
erroneous, however, is not to conclude that the error was
plain--i.e., "clear" or "obvious," Olano, 507 U.S. at 734.
Neither courts nor juries parse extemporaneous remarks in
closing argument as closely as sentences in carefully drafted
legal documents. Indeed, even in such documents authors
sometimes use the word "and" to convey the meaning of
"or"--and vice versa. See, e.g., Varel v. Banc One Capital
Partners, Inc., 55 F.3d 1016, 1020-21 (5th Cir. 1995) (holding
that the word "and" in a contract may mean "or"); see also,
e.g., De Sylva v. Ballentine, 351 U.S. 570, 573 (1956) ("We
start with the proposition that the word 'or' is often used as a
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1 The defendant concedes "that the prosecutor did not set out to
intentionally dilute the government's burden of proof, and would
surely not have made the misstatement if he had thought it
through." Appellant's Reply Br. at 5.
careless substitute for the word 'and.' "). Likewise, the word
"disbelieve" may be used loosely to indicate doubt rather than
actual disbelief. In fact, in their written brief in this case,
defendant's appellate counsel used the word in just that way.
Focusing on the prosecutor's error in stating that the jury
could not acquit unless it disbelieved Watson, Thomas, and
Baxa, appellate counsel erroneously conceded that it was,
however, "essentially correct to say that the jury could not
acquit unless it disbelieved Watson." Appellant's Br. at 13.
Appellate counsel's inaccurate formulation, contained in a
brief they had ample time to craft, only underscores why
statements made in the heat of oral argument are not and
cannot be read with an editor's red pencil in hand. Cf.
Donnelly v. DeChristoforo, 416 U.S. 637, 646-47 (1974) (cau-
tioning that a court should not lightly infer that a jury will
draw the most damaging meaning from a prosecutor's remark
in closing argument).
In assessing the import of a statement made in closing
argument, context is key. And in the context of the prosecu-
tor's entire argument in this case, it is not clear that the jury
would have understood his statement to mean that crediting
the testimony of any of the three witnesses would compel
conviction. To the contrary, the prosecutor stressed the
centrality of Watson's testimony, acknowledging that without
Watson the government would not have had a case against
Venable. Tr. at 270. Similarly, we hesitate to find that the
jury would clearly have understood the prosecutor to say that
acquittal required the jury's "disbelief" in the literal sense--
rather than reasonable doubt on the ultimate question of
Venable's guilt--since the prosecutor also noted the govern-
ment's burden of proving guilt beyond a reasonable doubt.
Id. at 258; cf. United States v. Spencer, 25 F.3d 1105, 1110
(D.C. Cir. 1994) (holding that where a district court instructed
the jury that it must decide whether the government's or the
defendant's witnesses were lying, but had earlier given a
proper instruction regarding the burden of proof, the "jury
could not have construed the court's remark to mean that the
defendant had the burden of proof, unless it ignored the
court's other instructions"). Accordingly, we conclude that
although the prosecutor's statement was erroneous, in context
it was not plainly so.
B
Even if the prosecutor's error were plain, to warrant
reversal of Venable's conviction it would also have to have
prejudiced the outcome of the trial. See Olano, 507 U.S. at
734. In evaluating the potential prejudice from an improper
statement in closing argument, this court typically looks to
the centrality of the issue affected, the severity of the prose-
cutor's misconduct, the steps taken to mitigate the miscon-
duct, and the closeness of the case. See United States v.
Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998); United States
v. North, 910 F.2d 843, 895 (D.C. Cir. 1990). Considering
those factors, we do not find the kind of prejudice necessary
to justify vacating Venable's conviction.
Although the issue affected by the prosecutor's comment,
the government's burden of proof, was as central to this case
as it would be to any case, the prosecutor's misstatement
cannot be characterized as severe. As noted above, in con-
text it is not clear that the jury would have understood the
prosecutor as misstating (or diluting) the government's bur-
den. Moreover, the offending comment consisted of a single
sentence in the course of a closing that was otherwise devoted
to proper argument regarding why the government witnesses
were believable and the defense witnesses were not. As we
held in United States v. North, "[w]ithout other compelling
factors, a single misstatement confined to a closing argument
rarely amounts to severe misconduct." 910 F.2d at 897.
There are no such compelling factors here. To the con-
trary, the prosecutor's misstatement was mitigated by the
court's twice-delivered instructions that the "law doesn't re-
quire a defendant to prove his innocence, produce evidence or
testify," and that the burden of proof "is on the Government
to prove the defendant guilty beyond a reasonable doubt and
that burden of proof never shifts throughout the trial," Tr. at
19 (initial instructions); id. at 275 (final instructions). See
United States v. Catlett, 97 F.3d 565, 573 (D.C. Cir. 1996)
(holding that the same burden-of-proof instruction as that
used here cured any confusion caused by a prosecutor's
remark that the jury could have understood as burden-
shifting); United States v. Trapnell, 638 F.2d 1016, 1026 (7th
Cir. 1980) (finding no plain error where, although the prose-
cutor made a remark similar to that challenged here, "the
trial court's instructions unambiguously place[d] the burden
of proof on the government"). The impact of the misstate-
ment was still further reduced by the judge's instructions that
it was the court's responsibility to apprise the jury as to the
law, and that the lawyers' statements were merely argument.
See generally Gartmon, 146 F.3d at 1026; United States v.
Gatling, 96 F.3d 1511, 1524 (D.C. Cir. 1996).
Finally, although the evidence against Venable was not
overwhelming, it was sufficiently strong, in light of the fore-
going factors, to undermine the assertion that the outcome of
the trial was affected by the prosecutor's statement. Wat-
son's eyewitness testimony regarding Venable's possession of
the weapon (together with the stipulation that Venable had a
felony conviction) established all of the elements of the crime.
And while Watson was not an unimpeachable witness, the
defense did not suggest any motive for him to accuse Venable
falsely. Moreover, Watson's testimony was corroborated in
important parts by both the officers' testimony and Venable's
own spontaneous utterance. The officers' observations sup-
ported the prosecution's theory that Venable removed his
jacket--wet from the mist outside--and wrapped the gun in it
when he saw them coming. And Venable's declaration that
he had not worn a black jacket that day--at a time when the
officers had not yet said a word about a jacket--was a classic
example of "protesting too much."
Weighing all these factors, we conclude that the defendant
has not met his burden, under the third prong of the plain
error standard, to establish prejudice arising from the prose-
cutor's error. Thus, there is no need for us to consider how
Venable would fare under the fourth prong of the standard,
which further requires him to establish that the error "seri-
ously affect[s] the fairness, integrity, or public reputation of
judicial proceedings." Johnson, 520 U.S. at 467 (quoting
Olano, 507 U.S. at 732) (other citations omitted).
III
In the context in which it was made, the prosecutor's
erroneous misstatement of the standard for acquittal was
neither plain nor prejudicial. Accordingly, the defendant's
conviction is
Affirmed.