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United States v. Christy

United States Court of Appeals, Tenth Circuit

February 15, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DENISE SUE CHRISTY, Defendant-Appellant.

          Appeal from the United States District Court for the District of Kansas (D.C. No. 5:15-CR-40091-DDC-1)

          Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender with her on the brief), Topeka, Kansas, for Defendant - Appellant.

          Jared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United States Attorney, and James A. Brown, Assistant United States Attorney with him on the brief), Topeka, Kansas, for Plaintiff - Appellee.

          Before TYMKOVICH, Chief Judge, O'BRIEN, and MATHESON, Circuit Judges.

          MATHESON, Circuit Judge.

         Denise Sue Christy stole cash from the vault of the bank where she worked as a teller. She was charged, convicted, and sentenced for various federal crimes. She now appeals.

         On May 21, 2014, CNB auditors conducted a surprise audit of the Burlington, Kansas Central National Bank ("CNB" or "Bank") vault. The vault was missing $764, 000. When they began to suspect Ms. Christy, she forged documents to purport that she had sent the missing cash to the Federal Reserve Bank of Kansas City ("FRB"). A grand jury indicted her on one count of bank embezzlement, six counts of making false bank entries, six counts of failing to report income on her taxes, and 10 counts of money laundering. After a six-day trial, a jury found Ms. Christy guilty of all charges except four money laundering counts.

         On appeal, Ms. Christy argues that (1) cumulative prosecutorial misconduct violated her due process rights, (2) the evidence was insufficient for her money laundering convictions, and (3) the jury instructions improperly omitted a "materiality" element for the false-bank-entry charges.[1]

         Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm the embezzlement, false bank entry, and failure to report income convictions. We reverse the money laundering convictions, vacate the sentence, and remand for resentencing.

         I. BACKGROUND

         A. Factual History

         1. Burlington CNB's Vault Management

         In 2014, Elaine Gifford was the retail operations supervisor of Burlington CNB. She supervised bank teller Ms. Christy and vault teller Raylene Thorne, Ms. Christy's sister-in-law.

         Ms. Gifford, Ms. Christy, and Ms. Thorne all had access to the Bank's vault. Ms. Gifford did not "keep much track of what was in the vault," ROA, Vol. III at 673, and Ms. Thorne often handed off her vault duties to Ms. Christy. Ms. Gifford relied on Ms. Christy to count the cash. When Ms. Gifford needed to record the amount of cash in the vault, she simply wrote down the numbers that Ms. Christy gave her.

         Approximately every other week, CNB Burlington transferred money to the FRB. When the vault had too much cash, [2] the Burlington branch sent cash, also known as "sold cash," to the FRB, which held the cash in an account for the branch. The FRB sent cash back to the Bank upon request. A company named Garda transported the cash to and from the FRB.

         Burlington CNB tracked its cash transfers in various ways:

(1) The Bank created cash-out tickets that recorded when money came out of the vault, including transfers to the FRB and smaller transfers to teller stations within the Bank. These tickets contained an unalterable "proof strip" recording the date they were printed.
(2) The Bank entered the cash-out transactions into an electronic system called "Vertex," which produced a report that showed the amount of cash in the vault at any given time.
(3) When the Bank sent cash to the FRB, it created a debit ticket memorializing the transaction.
(4) For each sale to the FRB, the Bank created two currency deposit tickets that itemized the denominations it sold to the FRB. One ticket went to Garda and the other stayed with the Bank.
(5) When Garda employees picked up the cash, they used a handheld machine to print out a receipt that both a Burlington CNB employee and the Garda employee signed. The receipt contained a time/date stamp that recorded the precise second the receipt was printed.
(6) Lisa Nabus, a senior accountant at Junction City CNB, balanced Burlington CNB's FRB ledger by comparing the Bank's deposits to a daily statement from the FRB.

         2. The May 21, 2014 Surprise Audit

         Leading up to May 21, 2014, Ms. Nabus noticed the following discrepancies between CNB Burlington's Vertex records and the FRB's daily statements:

(1) December 17, 2013-Ms. Christy prepared a cash-out ticket representing that the branch had sold $401, 000 to the FRB when in fact it had sold only $104, 000.
(2) January 14, 2014-Ms. Christy prepared a cash-out ticket representing that the branch had sold $400, 000 to the FRB when in fact it had never sold the money.
(3) February 25, 2014-Ms. Christy prepared a cash-out ticket representing that the branch had sold $562, 000 to the FRB when in fact it had never sold the money.
(4) March 18, 2014-Ms. Christy prepared a cash-out ticket representing that the branch had sold $270, 000, $225, 000, and $225, 000 when in fact it had never sold any of these amounts.
(5) April 22, 2014-Ms. Christy prepared a cash-out ticket representing that the branch had sold $401, 000 to the FRB when in fact the branch had sold only $101, 000.

         Although Ms. Christy adjusted the Vertex record to correct the discrepancies, [3] Ms. Nabus grew concerned about the errors and reported her concerns to Vicky Farres, a CNB auditor.

         In response, Ms. Farres conducted a surprise audit of Burlington CNB on May 21, 2014. According to the Bank's Vertex report, the vault should have contained $883, 320 in cash on that day. But the audit revealed that the vault held $119, 320-$764, 000 short.

         Ms. Farres reported that Ms. Christy was exceedingly nervous and behaved unusually during the audit. When Ms. Farres started the audit, Ms. Christy delayed the counting process multiple times. Ms. Farres needed to prompt her to begin counting. During the counting, Ms. Farres noticed that Ms. Christy did not replace straps on the stacks of hundred-dollar bills after counting them. Ms. Christy also put the stacks outside Ms. Farres's sight where she could re-count the same stack. At one point, Ms. Christy claimed that $100, 000 fell into a crack between the wall and a cabinet. When Ms. Farres and her colleagues examined the crack with a flashlight and a yardstick, they found only dust.

         Ms. Farres asked Ms. Christy what had happened to the missing cash. Ms. Christy at first paused and then responded that she had sold it to the FRB. Ms. Farres then asked for the Garda receipts documenting the transactions. Ms. Christy answered that Garda never provided them to her.

         The next day, however, Ms. Christy sent Garda receipts to Ms. Gifford for $90, 000, $100, 000, and $670, 000. Ms. Christy stated she had found the receipts in a drawer. Only the $90, 000 receipt was reflected in the FRB's records. It was also the only original receipt located during the audit and the ensuing investigation. The other two were copies. Separate from the receipt, the $90, 000 cash-out ticket had a "proof strip" showing the sale was made on May 20, 2014, and the $90, 000 transaction was recorded on the Vertex report. The Garda receipt for $90, 000 bore a legible bag number, which Garda used to track the precise delivery bag that carried the cash.

         The documentation of the purported $100, 000 and $670, 000 sales to the FRB differed from the $90, 000 sale. First, in contrast to the $90, 000 original receipt, the Bank never found original receipts for the $100, 000 and $670, 000 transfers. Second, the date stamps for all three receipts matched exactly, showing that the same machine printed all three receipts at the exact same second-May 20, 2014, at 13:35:08. Adam Lewis, the Garda employee who picked up and delivered the money, testified that printing three receipts with precisely the same date stamp would be "completely impossible." ROA, Vol. III at 926. Third, when a transparency of the $90, 000 receipt was placed over the copy of the $100, 000 receipt, the signatures matched exactly. [4] Fourth, the bag numbers on the two copied receipts were illegible, and surveillance footage showed Mr. Lewis leaving the branch on May 20, 2014, with only one bag. Finally, although the date stamp on the Garda receipts for the purported $100, 000 and $670, 000 sales was May 20, 2014, the Bank's cash-out tickets bore a "proof strip" showing that the tickets were created on May 21, 2014, the day of the audit. Id. at 592, 835-36.

         3. The Government Investigation

         The FBI and IRS coordinated the investigation. Two agents from an FBI task force questioned Ms. Christy about the missing money. During the interview, the agents asked Ms. Christy if she would be willing to take a polygraph. Ms. Christy responded that she wanted to think about it. Neither Ms. Christy nor the FBI raised the issue of the polygraph again. Throughout the interview, Ms. Christy denied any wrongdoing.

         IRS Special Agent Joseph Schmidt examined Ms. Christy's bank accounts and those of several of her family members. He reviewed Ms. Christy's tax returns (filed jointly with her husband, Chris Christy) from 2008 to 2014. Agent Schmidt found a significant disparity between the bank accounts and the tax returns. The Christys' reported income was about $30, 000 to $64, 000 per year. Their expenditures, which included cash payments on the Christys' home loans, amounted to $400, 000 that was unaccounted for in tax filings. Based on these calculations, Agent Schmidt concluded the Christys had failed to report income on their tax returns.

         B. Procedural History

         A grand jury indicted Ms. Christy, charging her with one count of bank embezzlement, in violation of 18 U.S.C. § 656 (Count 1); six counts of false bank entries, in violation of 18 U.S.C. § 1005 (Counts 2-7); six counts of declaring false tax returns, in violation of 26 U.S.C. 7206(1) (Counts 8-13); and ten counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(ii) (Counts 14-23). Ms. Christy did not testify during her six-day trial. The jury convicted her of all counts except four money laundering charges based on loan payments that occurred before 2014.

         The district court sentenced Ms. Christy to (1) 51 months in prison for the embezzlement and false bank entries (Counts 1-7), followed by three years of supervised release; (2) 36 months for filing false tax returns (Counts 8-13), followed by one year of supervised release; and (3) 51 months for money laundering (Counts 18-23), followed by three years of supervised release. The court ordered Ms. Christy's sentences to run concurrently. It also ordered $857, 708 in restitution. Ms. Christy timely appealed.

         We will add factual and procedural background as it becomes relevant.

         II. DISCUSSION

         Ms. Christy argues that (A) cumulative prosecutorial misconduct violated her due process rights, (B) the evidence was insufficient for her money laundering convictions, and (C) a materiality element was improperly omitted from the false-bank-entry jury instructions.

         A. Prosecutorial Misconduct

         Ms. Christy asserts that the prosecutor committed 12 acts of prosecutorial misconduct based on comments made during trial. She groups the comments into three "themes," alleging that the prosecutor (1) commented on Ms. Christy's exercising her right to trial, (2) depicted witness Elaine Gifford as credible and sympathetic, and (3) implied witness Raylene Thorne colluded with defense counsel. The following discussion describes the pertinent legal background and standard of review and analyzes the prosecutor's comments. Although we find or assume that some of the comments were improper, we conclude that Ms. Christy has not shown they affected her substantive rights. She must do so to show cumulative error on plain error review, and therefore the comments do not provide a ground to reverse.

         1. Legal Background

         The following describes (1) the relevant prosecutorial misconduct law, (2) the standards of review for appellate challenges to prosecutor statements made at trial, and (3) the cumulative error framework.

         a. Prosecutorial misconduct

         Prosecutorial misconduct can cause constitutional error in two ways. Underwood v. Royal, 894 F.3d 1154, 1167 (10th Cir. 2018). First, it can prejudice a specific constitutional right amounting to a denial of the right. Id.[5] Second, "absent infringement of a specific constitutional right, a prosecutor's misconduct may in some instances render a . . . trial 'so fundamentally unfair as to deny [a defendant] due process.'" Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974)); see United States v. Anaya, 727 F.3d 1043, 1052-53 (10th Cir. 2013) ("Prosecutorial misconduct violates a defendant's due process if it infects the trial with unfairness and denies the defendant's right to a fair trial." (quotations and alterations omitted)). Ms. Christy argues that the cumulative effect of the prosecutor's comments denied her a fair trial.[6] We therefore address only the second manner in which prosecutorial misconduct can cause constitutional error.

         The test for whether a defendant's trial was fundamentally unfair based on a prosecutor's comments proceeds in two steps: (1) the court first decides whether the prosecutor's comments were improper, and (2) if so, it examines their likely effect on the jury's verdict. See United States v. Currie, 911 F.3d 1047, 1055 (10th Cir. 2018); United States v. Fleming, 667 F.3d 1098, 1103 (10th Cir. 2011). The court thus must weigh any improper comments against the strength of the evidence against the defendant. See Berger v. United States, 295 U.S. 78, 88-89 (1935) (reversing conviction when prosecutor's misconduct was "pronounced and persistent" and the evidence against the defendant was "weak"); Darden v. Wainwright, 477 U.S. 168, 179 (1986) (assessing plainly improper statements in context of entire trial); United States v. Oberle, 136 F.3d 1414, 1422 (10th Cir. 1998) (same).

         i. Step one-propriety of the prosecutor's comments

         Courts have struggled to determine when a prosecutor's statements are improper. See, e.g., Runnels v. Hess, 653 F.2d 1359, 1362 (10th Cir. 1981) ("The fine line between what is permissible argument in this area is not always bright."). They have found that improper comments at trial include (1) commenting on a defendant's failure to take the stand, see Griffin v. California, 380 U.S. 609, 611-12 (1965); (2) referring to matters not in evidence, see United States v. Ainesworth, 716 F.2d 769, 771 (10th Cir. 1983); (3) encouraging the jury to allow victim sympathy to influence its decision, see Moore v. Gibson, 195 F.3d 1152, 1172 (10th Cir. 1999); (4) "vouching" for the credibility of a government witness or giving personal views on the case, see United States v. Swafford, 766 F.2d 426, 428 (10th Cir. 1985); (5) distorting the record by misstating the evidence, see Le v. Mullin, 311 F.3d 1002, 1020 (10th Cir. 2002); (6) misstating the law, see Currie, 911 F.3d at 1057; (7) making derisive comments about opposing counsel in front of the jury, see United States v. Young, 470 U.S. 1, 9 (1985); and (8) appealing to the jury's passion and prejudice or implying a jury has a civic duty to convict, see Thornburg v. Mullin, 422 F.3d 1113, 1133-34 (10th Cir. 2005); see also Paul J. Spiegelman, Prosecutorial Misconduct in Closing Argument: The Role of Intent in Appellate Review, 1 J. App. Prac. & Process 115, 134-36 (1999) (listing examples).

         Any alleged improper comments must be examined in context. Young, 470 U.S. at 11. For example, when a prosecutor has responded to a defense counsel's arguments, courts grant more leeway. See United States v. Robinson, 485 U.S. 25, 31 (1988); United States v. Ivory, 532 F.3d 1095, 1100 (10th Cir. 2008). In United States v. Jackson, the prosecutor suggested the defendant should "man up" and "accept responsibility" for his actions. 736 F.3d 953, 957 (10th Cir. 2013). We held that these statements did not constitute prosecutorial misconduct because they were made in response to defense counsel's suggestion that others might be at fault for a car accident that occurred as the defendant was fleeing the scene of a bank robbery he had committed. Id.

         Courts may consult codes of professional responsibility in assessing a prosecutor's statements. Young, 470 U.S. at 7-9 (citing American Bar Association codes of professional conduct); see Malicoat v. Mullin, 426 F.3d 1241, 1257 (10th Cir. 2005) (same). They also may consider the prosecutor's intent. See Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955) (assessing propriety of comments based on their "manifest[] inten[t]"); see also Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982) (examining prosecutor's intent in double jeopardy context to assess whether statements "goad[ed]" defendant to move for a mistrial); United States v. Tafoya, 557 F.3d 1121, 1126 (10th Cir. 2009) (same). But courts "should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning." Donnelly, 416 U.S. at 647.

         Notwithstanding these guideposts, "[t]he line separating acceptable from improper advocacy is not easily drawn." Young, 470 U.S. at 7. This difficulty has prompted some courts to assume the comments were improper and then decide whether they prejudiced the jury's verdict. See Fleming, 667 F.3d at 1106 ("We need not decide whether the prosecutor's comment . . . was improper, because even if it were, [the defendant] has not demonstrated that the statement violated his substantial rights."). This approach relies on step two to resolve the issue, which we turn to next.

         ii. Step two-effect on jury's verdict

         When a court determines or assumes the prosecutor made an improper comment, it then assesses whether the comment affected the jury's verdict. See id.[7] The applicable standard of review, which we discuss below, determines which party bears the burden of showing whether the defendant suffered prejudice. See Anaya, 727 F.3d at 1052-53. Absent prejudice, a prosecutor's improper statements alone will not require a new trial. United States v. Sorensen, 801 F.3d 1217, 1242-43 (10th Cir. 2015).

         To make the prejudice determination, courts "consider the trial as a whole, including the curative acts of the district court, the extent of the misconduct, and the role of the misconduct within the case." United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996) (quotations omitted); see also United States v. Taylor, 514 F.3d 1092, 1096-97 (10th Cir. 2008) (finding no prejudice when district court "rapidly" issued curative instruction). We presume that juries follow the district court's curative instructions unless there is reason to believe otherwise. United States v. Erickson, 561 F.3d 1150, 1169 (10th Cir. 2009).

         The prevalence and degree of improper statements in a trial can affect the prejudice analysis. See Berger, 295 U.S. at 89; Gabaldon, 91 F.3d at 94 (declaring "prosecutorial misconduct may be so egregious as to warrant reversal"). But "[t]he ultimate question is whether the jury was able to fairly judge the evidence in light of the prosecutors' conduct." Wilson v. Sirmons, 536 F.3d 1064, 1117 (10th Cir. 2008) (quotations omitted); see Currie, 911 F.3d at 1160 (affirming conviction in spite of prosecutor's misstatements of law when there was "overwhelming" evidence of defendant's guilt).[8]

         b. Standards of review

         When a defendant seeks appellate relief for improper prosecutor comments made at trial, the standard of review that we apply to the foregoing two-step test depends on whether the defendant objected at trial and how the court responded. Anaya, 727 F.3d at 1052-53. In Anaya, we identified the standard of review for four situations:

(1) The defendant objects and the court overrules the objection-de novo review.
(2) The defendant objects, the district court takes curative action, and the defendant objects to the adequacy of the curative action or asks for a mistrial-abuse of discretion review.
(3) The defendant objects, the district court sustains the objection, and the defendant fails to object to the adequacy of the curative action-plain error review.
(4) The defendant does not object at trial but raises the issue on appeal-plain error review.

Id.

         Under de novo review, we "first decide whether the conduct was improper and then, if so, whether the Government has demonstrated that error was harmless beyond a reasonable doubt." Id. at 1052 (quotations omitted) (emphasis added). Under plain error review, "reversal is warranted only when [1] the prosecutor's statement is plainly improper and (2) the defendant demonstrates that the improper statement affected his or her substantial rights." Id. at 1053 (quoting Fleming, 667 F.3d at 1103) (emphasis added). To be plain, an error must be "clear" or "obvious," meaning it is contrary to well-settled law. Taylor, 514 F.3d at 1100.

         c. Cumulative error

         Ms. Christy's aggregate effect challenge implicates this circuit's law on the proper approach to cumulative error review. We consider cumulative error only if the appellant has shown at least two errors that were harmless. United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc). Anything less would leave nothing to cumulate. See id. The question is whether the two or more harmless errors together constitute prejudicial error. See id. at 1469-70. As applied to the prosecutor comment context, a court may proceed with a cumulative error analysis only when the appellant has shown at least two comments were improper but were not prejudicial on their own. The court would then determine whether the comments together were prejudicial.

         But before a court can make that determination, it must distinguish between alleged errors that were preserved for appeal and those that were not. As for at least two preserved errors, we consider whether the government can show they together were harmless beyond a reasonable doubt. See United States v. Rogers, 556 F.3d 1130, 1141, 1144 (10th Cir. 2009). If the government cannot make that showing, we reverse. But if it can, we next combine the preserved errors and the unpreserved errors and decide, under plain error review, whether the defendant can show they together influenced the jury's verdict. Id. at 1144. If the defendant cannot, we affirm.

         * * * *

         With these principles in mind, we address the propriety of each of the prosecutor's comments, grouping them under Ms. Christy's three "themes" of alleged misconduct. We then analyze whether Ms. Christy has shown whether the comments we have determined or assumed to be improper cumulatively "infect[ed] the trial with unfairness" and denied her the right to a fair trial. Anaya, 727 F.3d at 1052. Although we determine or assume that some of the prosecutor's comments were improper, when judged in light of the entire trial record, we conclude these comments cumulatively did not outweigh the overwhelming evidence of Ms. Christy's guilt and did not influence the jury's verdict.

         2. Analysis

         a. Cumulative error: analytical framework

         Ms. Christy argues that the cumulative effect of the prosecutor's 12 comments violated her due process right to a fair trial. She contends that each comment was improper, but she does not claim that any one comment, standing alone, was enough to reverse her conviction. It follows that, even if improper, each comment alone would have been non-prejudicial and not reversible error. Rather than seek reversal based on any single comment, Ms. Christy argues that the comments together created a "crescendoing" or "cumulative" effect that infected the trial as a whole. Aplt. Br. at 17, 20.

         To enable us to do the cumulative error analysis, we must first determine whether any of the alleged wrongful comments was improper. And to do this, we must use the proper standard of review, which we outlined for different circumstances in Anaya and summarized above. This exercise consumes the majority of our analysis below. We address each of the prosecutor's comments not only to assess which ones may have been improper but also to aid our later analysis in which we weigh impropriety against the strength of the prosecution's case. See Darden v. Wainwright, 477 U.S. 168, 181 (1986); United States v. Darden, 688 F.3d 382, 397 (8th Cir. 2012) (balancing "strength of the evidence against the cumulative effect of prosecutorial misconduct").

         We proceed as follows. First, we examine each of the 12 statements under the proper standard of review to determine which ones were improper. Only improper comments qualify for the cumulative error analysis. Second, we determine whether the improper comments preserved for appellate review together caused cumulative harmful error. Third, assuming the preserved comments were not cumulatively harmful, we add in the unpreserved improper comments to determine whether Ms. Christy has shown the preserved and unpreserved wrongful comments influenced the jury's verdict.

         b. Propriety of the prosecutor's comments

         For each of Ms. Christy's three categories of alleged improper comments, we provide a chart that lists each comment, whether Ms. Christy objected to the comment at trial, the court's response to each objection, and the applicable standard of review.

         i. Comments on Ms. Christy's exercising her rights

         Ms. Christy alleges that the prosecutor improperly commented on her decision to exercise her constitutional rights in the following five instances:

Government Comments on Ms. Christy Exercising her Rights

Statement

Objection/ Result

Standard of Review

Comment 1

Opening:

So at the end of this case and the presentation of evidence, we're going to ask you to do something that she is unwilling to do and that is to make her accountable for her criminal conduct. She wants to get away with this scot-free . . . .

ROA, Vol. III at 248.

No

Plain error

Comment 2

Closing (Rebuttal):

So she was offered an opportunity to make an explanation. She was offered an opportunity to take a polygraph. She didn't avail herself of ever attempting to contact a representative of the United States after that.

ROA, Vol. III at 1089.

No

Plain error

Comment 3

Closing (Rebuttal):

The evidence in its entirety should lead you to the conclusion that she should be held accountable for conduct which she is unwilling to accept.

ROA, Vol. III at 1089.

No

Plain error

Comment 4

Closing (Rebuttal):

I enjoy where we have a case where someone has confessed to the offense. It's-it's an acknowledgment of their wrongdoing. But short of that, when somebody is denying it, I would prefer a ridiculous story. And that's what we've heard in argument and in cross-examination of our witnesses.

ROA, Vol. III at 1089-90.

Yes/ Overruled

De novo

Comment 5

Closing (Rebuttal):

So I believe when you review all the evidence, you will find that there is evidence beyond a reasonable doubt to hold the defendant accountable for each and every count of the indictment, to return a verdict of that, and to make her accept responsibility for that verdict even though she won't do it voluntarily. Thank you, folks.

ROA, Vol. III at 1090.

No

Plain error

          We review Comments 1, 2, 3 and 5 for plain error to determine whether they were "plainly improper." We review Comment 4 de novo to determine whether it was improper.

         1) Additional legal background

         The Sixth Amendment provides that "the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. The Fifth Amendment provides that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. Together they guarantee the defendant's right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 684-85 (1984) ("The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment."). The Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin, 380 U.S. at 615. We have "distinguished between prosecutorial statements implying guilt or challenging credibility," which are not improper, from "those relating to an accused's failure to testify," which are. Runnels, 653 F.2d at 1362. The prosecution is "free to comment on a defendant's failure to call certain witnesses or present certain testimony." Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th Cir. 2001).

         We assess whether a comment references a defendant's failure to testify by asking "whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Knowles, 224 F.2d at 170; see United States v. Rahseparian, 231 F.3d 1267, 1273-74 (10th Cir. 2000) (surveying case-law). Some courts have extended Griffin's holding to certain enumerated rights. See, e.g., Marshall v. Hendricks, 307 F.3d 36, 71 (3d Cir. 2002) (extending Griffin to the right to counsel and the right to call witnesses).

         2) Analysis

         Ms. Christy argues that these five statements were improper because they criticized her for exercising her constitutional rights. Her brief invokes the Fifth Amendment and Griffin's prohibition on comment about the defendant's silence, and it cites the Sixth Amendment regarding the defendant's right to a trial. Aplt. Br. at 21.[9]

         Comment 2 about the offer to take a polygraph was not about Ms. Christy's failure to testify at trial or her exercise of the right to trial. It was made in response to the following part of Ms. Christy's counsel's closing argument: "Remember [Ms. Christy's] interview? And [the FBI agents] said, oh, we'll get a polygraph. Why don't you take a polygraph? That will sort all of this out. They didn't do that. They didn't ever come back and talk to her again. They didn't reach out to her attorneys." ROA, Vol. III at 1077. In suggesting that the agents' investigation was incomplete, Ms. Christy's counsel invited the prosecution to explain the lack of follow up. To "right the scale," the prosecutor responded that Ms. Christy herself could have invited a second interview. See Young, 470 U.S. at 12-13. Though questionably relevant, the prosecutor's comment was made in response to defense counsel's criticism in closing argument of the agents' investigation and was not "plainly improper" under plain error review.

         The prosecutor's other four statements-Comments 1, 3, 4, and 5-did not comment about Ms. Christy's failure to testify. They also did not expressly comment on Ms. Christy's exercising her right to a trial. These statements, broadly interpreted, could be understood as an implied comment on Ms. Christy's decision to go to trial rather than plead guilty, though none of them stated this specifically.

         We review Comments 1, 3, and 5 to consider whether they were "plainly improper." Comment 1, the prosecutor's opening statement about Ms. Christy's unwillingness to be accountable, could be read to state the obvious-that she had not pled guilty. But it also could be taken as criticism of her decision to put the government to its burden of proving her guilty, which was her right under the Fifth and Sixth Amendments. See generally Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993) (explaining Fifth Amendment "requirement of proof beyond a reasonable doubt" and Sixth Amendment "right to a speedy and public trial, by an impartial jury"). The same can be said about Comments 3 and 5, both made in rebuttal closing argument. As noted above, the defense failed to object to these comments, and the question under plain error review is whether they were "plainly improper," Anaya, 727 F.3d at 1053.

         Unlike a comment on a defendant's failure to testify, which suggests the defendant lacks a truthful defense, see Griffin, 380 U.S. at 614-15, a comment that the defendant has chosen to go trial and contest the charges rather than plead guilty carries no such connotation. The prosecutor's comments were not made, as they were in our Jackson case, in direct response to an argument from defense counsel, but they did respond to the defendant having pled not guilty. 736 F.3d at 957. We need not decide whether these statements were "plainly improper" because, as we discuss below, even if they were, Ms. Christy has not shown that they influenced the jury in light of the compelling evidence against her. See Fleming, 667 F.3d at 1104.

         As for Comment 4, which we review de novo for its propriety, the prosecutor's statement that he enjoys when someone has confessed was not relevant but not improper. His statement that he prefers a "ridiculous story" when someone has denied guilt seems to be a fair advocacy comment on the defendant's evidence. The comment as a whole, like the other comments, do not expressly criticize Ms. Christy for going to trial, but even if Comment 4 could be read as implying so, it would not be enough, along with other comments in the cumulative error analysis below, to show prejudice.

         ii. Comments depicting Elaine Gifford as credible and sympathetic

         As noted above, Ms. Gifford was Ms. Christy's supervisor at the Bank. She was terminated after the Bank discovered Ms. Christy's embezzlement. Ms. Christy argues that the prosecutor improperly depicted Ms. Gifford as credible and sympathetic in the following five instances:

Government Comments Depicting Ms. Gifford as Credible and Sympathetic

Statement

Objection/ Result

Standard of Review

Comment 6

Opening:

And it is now time to become serious because it's a very serious matter. It's serious to the victims of the crime. The main victim is Central National Bank, but there was a lot of collateral damage caused by the defendant, Denise Sue Christy, over there . . . Elaine Gifford is one of the collateral damage [sic] caused by the defendant, Denise Sue Christy.

ROA, Vol. III at 235, 238.

No

Plain error

Comment 7

Direct Examination of Ms. Gifford:

Ms. Gifford: Correct. I relied on Denise. I trusted her. And I trusted all my girls down there to do the right thing. You know, you put them in charge of something, you relied on them to do the correct-you know, we're like family, you know. We were just a group that enjoyed each other and thought we all would do what was right.

AUSA: Found out that wasn't correct?

Ms. Gifford: Correct.

AUSA: It's okay. You-you lost your job over this, didn't you?

Ms. Gifford: I did. And I'm paying for it.

ROA, Vol. III at 706-07.

No

Plain error

Comment 8

Direct Examination of Ms. Gifford:

Ms. Gifford: I relied on Denise to balance the vault every day to make sure, you know, it balanced. Between her and Raylene. You know, when-when you-when you work for someone-with someone for 15 years, you know, you're kind of family and you trust them and they should, you know-

Defense Counsel: Objection, Judge. I'm sorry, it's nonresponsive. The Court: Yeah, I think it's-I think we wandered into an area. Why don't you put a question to the witness.

AUSA: So you're telling us, I think, that you were relying upon her faith and honesty?

Ms. Gifford: Yes.

AUSA: And did you find out after May the 21st of 2014, the date of the surprise examination, that she had betrayed your faith-

Defense Counsel: Objection. Improper opinion.

The Court: Overruled.

Defense Counsel: Objection. Leading.

The Court: Overruled.

ROA, Vol. III at 780-81.

Yes/ Overruled

De novo

Comment 9

Closing:

AUSA: And finally, I want to single out Elaine Gifford. She may have come across kind of short with you, but she was one of the collateral damage [sic] I mentioned in opening statement. This defendant, cunning and malevolent as she is, is willing to throw anybody under the bus if she can get away with her crime.

ROA, Vol. III at 1042.

No

Plain error

Comment 10

Closing:

AUSA: And what she said was what I told you in opening statement. That with all the rules and regulations and so forth that the bank has in place to try to make sure these things don't happen, it boils down fundamentally to the honesty of the people executing those procedures. Elaine Gifford said they were like family there. And she was probably the most sincere witness I've ever seen-

Defense Counsel: Objection. Vouching. The Court: Sustained.

AUSA: She broke down on the stand and she told you the truth. She relied upon the honesty and integrity of her employees, and they did not come up to her standards.

ROA, Vol. III at 1042-43.

Yes/ Sustained

No curative measures taken or requested

Plain error


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