940 F. 2d 669 - United States v. Bush

No. 90-10402.

United States Court of Appeals, Ninth Circuit.

Before HUG and POOLE, Circuit Judges, and ATKINS, District Judge.**

MEMORANDUM***

Donovan Bush appeals his conviction for one count of aggravated sexual abuse in violation of 18 U.S.C. Sec. 1153 and Sec. 2241(a)(1), and one count of sexual abuse of a minor in violation of 18 U.S.C. Sec. 1153 and Sec. 2243 (a)(1) and (2). Bush contends that the district court erred by (1) not giving his jury instruction # 3, which was withdrawn by him; (2) not admonishing the jury after the prosecutor commented on his silence; and (3) giving a jury instruction which defined "reasonable doubt" in such a way as to reduce the government's burden of proof. We have jurisdiction pursuant to 28 U.S.C. section 1291 and we affirm.

* Jury instruction withdrawn by defendant

Bush contends that the district court erred in not giving a jury instruction which he himself later withdrew. This contention lacks merit.

Here, Bush asserts that pursuant to Fed.R.Crim.P. 30, he was entitled to an 18 U.S.C. 2243 (c)(1) instruction based on the affirmative defense that he reasonably believed that the victim was 16 years of age. Bush did submit such a proposed instruction. However, at the close of evidence and before the charge, Bush withdrew the instruction.

Where a party himself acquiesces in the giving or withholding of a jury instruction, we apply a plain error standard of review.1 United States v. Kelm, 827 F.2d 1319 (9th Cir.1987), citing United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). Since Bush himself withdrew the jury instruction, and in view of the overwhelming evidence against him,2 the district court's failure on its own motion to give the jury instruction did not constitute plain error. See United States v. Kelm at 1324.

The reference to Bush's post-arrest silence

The prosecution in its cross examination of the defendant asked, (referring to what took place when the defendant was being booked): "And, you told them what you have told us today; is that correct?" Bush argues that this comment by the prosecution impermissibly referred to his post-arrest silence in violation of his fifth amendment privilege. The government, however, contends that the error, if any, was harmless.

A prosecutor may not comment on a criminal defendant's failure to testify. Griffen v. California, 380 U.S. 609, 615 (1965). Comments on a defendant's post-arrest silence are addressed under the harmless error doctrine. See, e.g., United States v. Espinosa, 827 F.2d 604, 616 (9th Cir.1987); Lincoln v. Sunn, 807 F.2d 805, 811 (9th Cir.1987); United States v. Armstrong, 654 F.2d 1328, 1336 (9th Cir.1981), cert denied, 454 U.S. 1157 (1982). In United States v. Kennedy, 714 F.2d 968 (9th Cir.1983), this court applied the plain error doctrine where the defendant did not object to a comment by the prosecutor. Id at 976-77. In Kennedy the court stated that "... where the prosecutorial comment was a single isolated statement, where it did not stress any reference to guilt, and where it was followed by curative instructions, [it has] been reluctant to reverse." Kennedy 714 F.2d at 976.

In Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102 (1987), the Supreme Court ruled that a single question addressed to the defendant concerning his post-arrest silence did not amount to error under Doyle v. Ohio, 426 U.S. 610, where the trial court immediately sustained an objection to that question, the court advised the jury to disregard the question and the defense counsel did not request more curative instructions. Greer 483 U.S. at 766 and n. 5.

In Greer and its progeny, the key issue has been whether there was a timely objection, a request for a mistrial and curative instructions by the court. In the instant case, there was a timely objection by the appellant and a request that the prosecutor be admonished. The trial court sustained the objection and did admonish the prosecutor. The defendant did not request curative instructions to the jury and the court did not advise the jury to disregard the question.

In light of the rulings in Kennedy and Greer, we do not find that the prosecutor's inquiry into the defendant's post-arrest silence was improper. The remaining question is whether the comment was prejudicial.3 Where there is prosecutorial error of constitutional dimension, the government has the burden of establishing that it was harmless. It is harmless if we are "able to declare a belief that it was harmless beyond a reasonable doubt." E.g., Chapman v. California, 386 U.S. 18, 24 (1967). The question is whether, absent the prosecutor's comment on the defendants post-arrest silence, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty? Harrington v. California, 395 U.S. 250 (1969). Here the answer is yes.

The evidence against the appellant was substantial and overwhelming. The government's evidence left few questions unresolved. Several circumstances tended to positively show that the appellant did in fact commit the crimes of which he was convicted. Given the magnitude of the crimes committed and the clear evidence of guilt, we have no doubt that the jury would have found the defendant guilty beyond a reasonable doubt, regardless of the comment. As such, the comment amounted to harmless error and the district court's decision is affirmed.

Bush asserts that the "firmly convinced" language provided for in the reasonable doubt jury instruction, impermissibly reduced the governments burden of proof. Bush failed to object to the instruction at trial.

This court reviews for plain error, the district court's instructions to the jury, where the defense fails to object at trial. Plain error is a highly prejudicial error affecting substantial rights. United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988); United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). The plain error remedy should be used in exceptional circumstances to prevent a miscarriage of justice. Bustillo, 789 F.2d at 1367.

This court held in Bustillo, that the "firmly convinced" language provided in the reasonable doubt jury instruction did not constitute plain error. Bustillo, at 1368. In the case at bar, the trial judge here gave an instruction identical to that given in Bustillo.

Accordingly, the judgment is affirmed.