A recent unpublished opinion from the United States Circuit Court for the Eleventh Circuit regarding a federal gun case shows that the 5th Amendment and its protections must be taken seriously. The defendant was facing a 10 year sentence in federal prison on a federal gun case for being a felon in possession of a firearm. The defendant took the stand during trial and testified about his lack of knowledge of one gun being present in the residence that he shared with a friend, and that he thought the other gun belonged to his friend and was not his gun. During cross-examination the prosecutor questioned the defendant about selling drugs. The defendant invoked his 5th Amendment right not to testify against himself to the questions of the prosecutor. The prosecutor repeatedly phrased the rest of the questioning of the defendant in such a way as to suggest that the only reason the defendant was pleading the 5th was because he was guilty of something. During closing statements in the federal gun case the prosecutor again explicitly suggested to the jury that the defendant was guilty of something since he pled the 5th Amendment.
In addition, during the closing arguments, the prosecutor misstated the testimony during trial concerning the defendant exchanging drugs for sex, and interjected race into the case by stating that the defendant, and african-american, had traded methamphetamine for sex with a “white female.”
The Federal Court of Appeals commented in the opinion:
The AUSA, by her improper questions and comments, manifestly intended to urge the jury to draw an inference form Foster’s silence that he was guilty.
The Court went on to comment:
In short, the AUSA’s argument misrepresented testimony, violated a clear ruling of the court, and injected race and sex into a case that had nothing to do with either.
The Court of Appeals held that the misconduct was particularly egregious in this case because the jury was essentially deciding the federal gun case on the credibility of the defendant: whether or not they believed his testimony. By commenting as the prosecutor did, it was a improper attack on the defendant’s credibility.
In an unusual move, the Court of Appeals asked the prosecutor to be present during the oral argument in the case in order to be fair and to allow her to explain her actions. The Court commented that it found the explanation “unconvincing.”
The federal gun case conviction was reversed and the case was remanded for a new trial.
United States v. Alfred Omega Foster, Unpublished No. 14-10437