2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-23-2011

USA v. Shawn Dillard

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2249

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Recommended Citation

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 10-2249

_______________

UNITED STATES OF AMERICA

v.

SHAWN DILLARD,

Appellant

_______________

On Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. Criminal Action No. 1-08-cr-00270-001)

District Judge: Honorable Yvette Kane

_______________

Submitted Under Third Circuit LAR 34.1(a)

June 23, 2011

_______________

Before: BARRY, AMBRO, and VAN ANTWERPEN, Circuit Judges

(Opinion filed: June 23, 2011)

_______________

OPINION

_______________

AMBRO, Circuit Judge

Shawn Dillard was indicted for participating in prostitution and various related 

activities. At his trial, the Government briefly and unintentionally displayed a reference 
2

to the fact that Dillard had taken a polygraph examination. The District Court denied 

Dillard’s motion for a mistrial. Dillard appeals. We affirm. 

I.

As we write solely for the parties, we recite only those facts necessary to our 

decision. Dillard was a trooper for the Pennsylvania State Police. One of his duties as a 

trooper was to conduct anti-prostitution patrols. During the course of these patrols, 

Dillard took part in prostitution by, among other things, demanding sexual favors and 

money from women he detained and arrested. He also informed prostitutes and pimps of 

undercover operations and law enforcement activities.

In March 2009 Dillard was charged with multiple counts: conspiring to impede 

the due administration of justice and to promote interstate prostitution in violation of 18 

U.S.C. § 371 (Count One); impeding the due administration of justice in violation of 18 

U.S.C. § 1503 (Count Two); aiding and abetting interstate prostitution in violation of 18 

U.S.C. §§ 1952(a)(3) (Count Three); Hobbs Act extortion in violation of 18 U.S.C. 

§ 1951(a) (Counts Four through Seven); and making false statements to law enforcement 

officials in violation of 18 U.S.C. § 1001 (Counts Eight and Nine). 

Dillard was tried in May 2009. During the Government’s closing argument, the 

prosecutor displayed two inconsistent statements made by Dillard regarding his sexual 

involvement with a particular woman. The prosecutor pulled up the first statement, with 

the pertinent language (“I did not have sex with her”) highlighted in bright yellow. But, 

because a portion of the statement was cut off by the monitor, the prosecutor cropped and 

displayed only the relevant language, which was then read to the jury. The prosecutor 
3

did the same with the second statement, pulling up the complete document (which 

contained the highlighted words “I did have sex with her”), and then cropping the 

relevant portion. The defense objected and moved for a mistrial because the second full 

statement contained a reference to Dillard’s “polygraph examination” in the first 

paragraph. The District Court denied the motion. The jury convicted Dillard of Counts 

Two, Three, Eight, and Nine, and acquitted him of Counts One, Four, Five, Six, and 

Seven. 

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction 

under 28 U.S.C. § 1291. We review a district court’s denial of a motion for a mistrial for 

an abuse of discretion. United States v. Hakim, 344 F.3d 324, 328 (3d Cir. 2003) (citing 

United States v. Weaver, 267 F.3d 231, 245 (3d Cir. 2001)). 

On appeal, Dillard argues that the District Court abused its discretion by denying 

his motion for a mistrial because the Government’s “publishing” of the second statement, 

containing an inadmissible reference to Dillard’s polygraph examination, “severely 

damaged [his] testimony, which was the cornerstone of his defense, and effectively 

deprived him of his right to a fair trial.” Dillard Br. 15. We disagree.

First, the facts belie Dillard’s argument. As Chief Judge Kane stated when 

denying the motion for a mistrial, it was unlikely that members of the jury even saw the 

problematic phrase, as she was unable to read the document from where she sat. The 

words were only on the screen for a few seconds, were not emphasized in any way, and 
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the relevant highlighted portion later cropped by the prosecutor was at the bottom of the 

page, far removed from the offending reference in the first paragraph. 

In any event, even if the jury did see the phrase, the error was harmless. As the 

Government points out, “the evidence of [Dillard’s] guilt was overwhelming, consisting 

of eyewitness testimony of law enforcement officers, intercepted telephone 

conversations, the testimony of victims, telephone records[,] and Dillard’s own admission 

of sexual involvement with women he had arrested for prostitution.” Government Br. 19-

20. 

Second, the two cases Dillard cites in support of his argument are distinguishable. 

In United States v. Murray, 784 F.2d 188 (6th Cir. 1986), an FBI agent testified that the 

defendant had been required to take a polygraph examination. Id. at 188. The Court in 

that case found that the disclosure was deliberate and the proof of guilt was not sufficient 

to hold that the error was harmless beyond a reasonable doubt. Id. at 188-89. The Court 

also concluded that an erroneous jury instruction—that the Government was not required 

to prove guilt beyond a reasonable doubt—required reversal. Id. None of that is true of 

this case, in which disclosure was fleeting and accidental, proof of guilt was 

overwhelming, and there were no independent grounds for a mistrial.

Similarly, in United States v. Brevard, 739 F.2d 180 (4th Cir. 1984), an FBI agent 

testified that he questioned the defendant’s alibi and had asked him to take a polygraph 

examination. Id. at 181. After the trial judge struck the testimony and instructed the 

prosecutor to avoid any further reference to the polygraph, the FBI agent mentioned it 

again during cross-examination. Id. at 181-82. The District Court gave an instruction to 
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the jury to disregard any reference to the polygraph and allowed the trial to proceed. Id. 

at 182. On appeal, the Fourth Circuit Court reversed, holding that the defendant’s alibi 

defense made critical the issue of his credibility and that the jury could have inferred that 

the defendant failed the polygraph because he was not indicted until after he took the 

examination. Id. at 182-83. Again, this is not true of our case, in which the evidence of 

Dillard’s guilt was overwhelming and did not turn on his testimony, and the context was 

not such that we could conclude that the jury could have made negative inferences about 

the results of the polygraph from the display of the second statement.

* * * * *

For these reasons, we affirm.