The opinion of the court was delivered by: DITTER
Defendant was convicted of making false statements to a grand jury. He seeks a new trial on the grounds that in closing argument the prosecutor commented upon defendant's failure to testify, thus violating the Fifth Amendment privilege against self-incrimination. For the reasons which follow, defendant's motion must be granted.
At trial, the government's chief witness was Joseph Baldino, who testified that he gave defendant, Edward Venable, the chairman of the Delaware County Housing Authority, $500. on three separate occasions in 1973 as payment for Baldino's being awarded architectural work for the authority. Baldino related that no one else was present when these illegal payments were made. The government showed that the defendant had appeared before a grand jury and had denied taking any payoffs and had also denied knowing others had done so. He was charged on three counts with extortion but was acquitted; however, he was found guilty on two counts of making false statements to the grand jury.
As we look at the defense evidence, if you do nothing else when you deliberate, ask yourself one question. What evidence has the defense put on to deny the allegations of Joseph Baldino? Nothing. (N.T. 5-18).
Defendant's counsel immediately interposed an objection. At side bar, he asked me to provide a cautionary instruction to the jury, to warn the government attorney that the statement was highly improper, and to grant a mistrial.
I refused the mistrial motion, but did advise the prosecutor that I was concerned with what he had said and that if he hadn't already crossed the border, he was "skirting awfully close to it." (N.T. 5-19). Following my denial of his motion, defense counsel then asked that I not caution the jury because he felt any admonition at that point would only underscore the problem. The trial then proceeded to conclusion.
It is well established that a comment by the government upon the failure of defendant to testify invades the Fifth Amendment privilege against self-incrimination. Griffin v. California, 380 U.S. 609, 612, 85 S. Ct. 1229, 1232, 14 L. Ed. 2d 106 (1965); Linden v. United States, 296 F. 104 (3d Cir. 1924). The error may be harmless, however, under all the circumstances, Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963). The test to be applied to the prosecutor's remarks is found in United States ex rel. Leak v. Follette, 418 F.2d 1266, 1269 (2d Cir.), cert. denied 397 U.S. 1050, 90 S. Ct. 1388, 25 L. Ed. 2d 665 (1970):
Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify? (citations omitted). The trend has been, correctly in our view, to treat the two adverbs in the conjunctive and to stress the "necessarily." Thus it has been held that remarks concerning lack of contradiction are forbidden only in the exceedingly rare case where the defendant alone could possibly contradict the government's testimony. . . (citations omitted) (emphasis added).
Venable contends that the government's statement was a comment upon his failure to testify because only he could deny or rebut Baldino's accusations. The government resists the new trial motion on three grounds: 1) the prosecutor's arguments were directed to the strength of the government's case and his closing was designed to support the credibility of Baldino's testimony, which had been attacked on cross-examination; 2) defendant is precluded from raising the issue at this time because he requested no curative instruction but, even so, any error was rectified in my charge to the jury; and 3) the error was harmless and it is extremely doubtful the comment swayed the jury. I find these arguments unpersuasive and hold the comment constituted prejudicial error.
A great number of cases have been cited by both sides concerning the extent, if any, to which a prosecutor is forbidden to stress the strength of his case because the jury may take it to be a comment upon the defendant's failure to testify. An examination of all of these cases is unnecessary. Suffice it to say that courts have refused to find such statements prejudicial where the comment was a fair rejoinder to defendant's attack on the credibility of a prosecution witness or witnesses, United States v. Gimelstob, 475 F.2d 157, 163 (3d Cir. 1973), cert. denied 414 U.S. 828, 94 S. Ct. 49, 38 L. Ed. 2d 62, rhg. denied 414 U.S. 1086, 94 S. Ct. 606, 38 L. Ed. 2d 491 (1973); United States v. Lipton, 467 F.2d 1161, 1168-69 (2d Cir.), cert. denied 410 U.S. 927, 93 S. Ct. 1358, 35 L. Ed. 2d 587 (1973); where the comment was oblique and the court gave an immediate cautionary instruction or one in its final charge to the jury, see United States v. Thurmond, 541 F.2d 774, 776 (8th Cir. 1976), cert. denied 430 U.S. 933, 97 S. Ct. 1556, 51 L. Ed. 2d 778 (1977); United States v. McCrae, 344 F. Supp. 942, 946 (E.D. Pa. 1972), aff'd 475 F.2d 1397 (3d Cir. 1973); or where other witnesses were available to contradict the government's case. United States v. Bartemio, 547 F.2d 341, 346 (7th Cir. 1974); United States v. Thompson, 490 F.2d 1218, 1221 (8th Cir. 1974); United States v. Gatto, 299 F. Supp. 697, 703 (E.D. Pa. 1969). However, when the defendant is the only source to explain or deny the prosecution's evidence and he remains silent, courts have required a new trial where comments relate to the failure to deny or explain. United States v. Handman, 447 F.2d 853 (7th Cir. 1971); Desmond v. United States, 345 F.2d 225 (1st Cir. 1968); Linden v. United States, 296 F. 104 (3d Cir. 1924).
In United States v. Flannery, 451 F.2d 880, 882 (1st Cir. 1971), the First Circuit announced it would reverse whenever such comments were made if the defendant was the only one to contradict the government's evidence unless the court gave an immediate instruction which would dispel the prejudice.
The government first contends the prosecutor's comment was directed toward the strength of the government's case and was not intended to relate to the defendant's failure to testify. If this was the intent of the assistant United States attorney, the timing, emphasis, and previous arguments were, at best, unfortunate.
His speech to the jury was comparatively short -- a little more than 14 pages of the record (N.T. 5-10 to 5-24). The remark to which objection is made came on the eighth page (N.T. 5-18). There were, however, four prior, similar comments.
No objection was made to these statements and since all came in the midst of argument about the government's evidence, it is only a mild distortion of logic to say they were made in support of the prosecution's case.
These comments did set the stage for the prosecutor's climax. During the course of his speech, the assistant U.S. attorney had mentioned seven government witnesses by name, outlining the highlights of their testimony and what inferences the government thought should follow from what they had said. Having conducted this review and made his argument, the prosecutor announced he was finished with what the government had shown: "So much for the Government's evidence." (N.T. 5-18). He then stated that the next thing for consideration was the case offered by the defense, saying, "As we look at the defense evidence . . ."
With this as his introduction, the prosecutor next suggested the jurors should ask themselves one question, "What evidence has the defense put on to deny the allegations of Joe Baldino?" He ...