In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-4232

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SAMUEL H. JUMPER,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 05 CR 30174—G. Patrick Murphy, Chief Judge.

____________

ARGUED MAY 25, 2007—DECIDED AUGUST 13, 2007

____________

Before BAUER, CUDAHY, and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge. The defendant, Samuel Jumper,

appeals his conviction of conspiracy to distribute and

possession with intent to distribute marijuana. Jumper

offers two grounds for reversal both of which concern the

district court’s denial of his motion in limine to exclude

portions of the defendant’s videotaped interrogation from

evidence. Namely, Jumper argues that the district court

erred in admitting the videotaped interrogation in its

entirety because it contains (1) three questions which

the defendant refused to answer thereby invoking his

Fifth Amendment right to remain silent and (2) various

comments by the interrogating FBI agent which called

into question the defendant’s veracity. We find error as
2 No. 06-4232

to the first ground claimed by the defendant but not as to

the second. Regardless, we find the error harmless and

therefore affirm the conviction.

I. Background

The defendant, Samuel H. Jumper, was charged with

one count of conspiracy to distribute and possession with

intent to distribute marijuana pursuant to 21 U.S.C. § 846

and one count of possession with intent to distribute

marijuana pursuant to 21 U.S.C. § 841(a)(1). The defendant was found guilty by jury verdicts of both counts

and was sentenced to 188 months’ imprisonment.

This appeal concerns the admission of a videotape of

Jumper’s post-arrest, custodial interrogation on October 9,

2005. Earlier that same day, Jumper and two other

individuals were arrested by Drug Enforcement Agents

after twenty-two boxes on a tractor-trailer which the three

individuals were unloading were found to contain marijuana. Before beginning the interrogation, Drug Enforcement Agent Eric Zaber informed Jumper of his rights:

Before we ask you any questions you must understand

you have rights. You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice before

we ask you any questions or have him or her with you

during questioning. If you can not [sic] afford a lawyer,

one will be appointed to you before any questions if

you wish. If you decide to answer questions now

without a lawyer present you will have the right to

stop answering at any time. You also have the right to

stop answering at any time until you have a lawyer.

So basically it says on there, like I was telling you,

[i]f there’s some questions you don’t want to answer

you can just bypass, I don’t want to answer that one.

(Government’s Ex. 5A at 1.)
No. 06-4232 3

During the interview, on three separate occasions,

Jumper indicated that he did not want to answer a certain

question. The first instance involved Agent Zaber’s questioning of the delivery arrangement:

[Eric Zaber]: But, you call him up and what does he

tell ya[?] What do you tell him[?] What’s this conversation like?

[Samuel Jumper]: I just call[ed] him up[,] told him

I was in Troy at the truck stop.

EZ: O.[K].

SJ: Told him what exit I was at and he told me he

would send his a, send one of his guys up. So that’s

what they did.

EZ: To get the pipe fittings[?]

SJ: Yes.

EZ: Does that seem unusual?

SJ: No not really, I, I mean, I just not gonna, I don’t

wanna answer that.

(Id. at 5.) The second instance of reluctance to answer

involved a previous incident when a trailer owned by the

defendant had been stopped with marijuana in it:

EZ: Um, did you have a tractor trailer or trailer that

you own that was stop[ped] with some marijuana in it?

SJ: I had a trailer of mine.

EZ: A trailer[?]

SJ: Yes, yes.

EZ: Who was driving that?

SJ: I’d rather not say.

EZ: Larry Nunley?

SJ: I’d rather not say.
4 No. 06-4232

EZ: O.[K].

SJ: Because like I said, I don’t know what he was

into . . .

EZ: Well, that makes two of us . . .

SJ: I don’t want to get into it . . .

(Id. at 11-12.) The third and final instance occurred when

Agent Zaber was questioning Jumper about transporting

illegal money:

EZ: . . . [W]hat kind of people use truck drivers to run

money, you[’ve] been a truck driver for sixteen years.

What kind of people use truck drivers to run money[?]

SJ: Depends on what kind of money they[’re]

runnin[g].

EZ: Illegitimate money. Money that they don’t want to

be found. What kind of, what kind of people[?]

SJ: I don’t know. Rather not answer that.

EZ: So you’ve been a truck driver for sixteen years, and

you have no idea, the kind of people that would . . .

SJ: I’m not even gonna answer that, cause like I say

then if they answer, then you incriminate yourself,

then you[’re] taken to a . . . use that against me in the

court of law again.

(Id. at 20.)

During the interview, Agent Zaber also made comments

indicating that he believed that Jumper was lying:

SJ: Because, I’m not gonna tell you no lie.

EZ: Well, I, I don’t think that part is true, but . . .

(Id. at 13.)

SJ: I wouldn’t lie to you there.
No. 06-4232 5

1 On appeal, the defendant only raises concerns with the

portions of the tape in which Agent Zaber offers his personal

opinion about the credibility of Jumper’s answers.

EZ: Well, I think you have lied to us earlier already.

. . .

EZ: Pulling those words back. You say em and you[’re]

very quick to catch em. But you, once they . . . come

out you can’t pull it back . . . .

(Id. at 19.) Jumper also cites in his brief other comments

made by Agent Zaber concerning Jumper’s truthfulness

or credibility.

Prior to trial, the defendant filed a motion in limine

to exclude portions of the videotaped statement from

evidence on two different grounds. First, the defendant

argued that he exercised “his Fifth Amendment right not

to answer a question or series of questions” in the three

instances previously cited. (R. 93 at 1.) Second, the defendant argued that “[a]t several points in the interview, the

Agent expresses his personal opinion about the credibility

of Defendant’s answers, or argues with the Defendant, or

discusses potential further cooperation with the Defendant.”1

 (Id. at 2.) In its response to the motion, the Government argued that the right to remain silent only attaches

“where a defendant has maintained complete silence.” (R.

94 at 2.) As for the portions of the interview where Agent

Zaber questions the defendant’s credibility, the Government argued that the defendant failed to cite any cases in

support of his argument that the probative force of the

agent’s statements are outweighed by their prejudicial

effect. (Id.) The district court denied the motion without

opinion. (R. 95.)
6 No. 06-4232

II. Discussion

A. Standard of Review

Before turning to the merits of the appeal, we must

first resolve the appropriate standard of review. We review a district court’s ruling as to the admission or exclusion of evidence for abuse of discretion. United States v.

Wilson, 307 F.3d 596, 599 (7th Cir. 2002). Whether an

evidentiary ruling had the effect of infringing a defendant’s

constitutional rights is a question of law which is reviewed

de novo. Id. If we find a constitutional error in an evidentiary ruling, we reverse unless the error is harmless.

Chapman v. California, 386 U.S. 18, 22 (1967); United

States v. Wick, 416 F.2d 61, 62 (7th Cir. 1969). An error is

harmless if it appears “beyond a reasonable doubt that the

error complained of did not contribute to the verdict

obtained.” Ben-Yisrayl v. Davis, 431 F.3d 1043, 1052 (7th

Cir. 2005) (quoting Chapman, 386 U.S. at 24) (quotation

marks omitted).

The Government argues that the defendant failed to

make a proper objection at trial, and therefore we should

review the admission of evidence for plain error instead of

for abuse of discretion. This argument lacks any merit. The

defendant had filed a motion in limine to exclude portions

of the defendant’s videotaped statement. (R. 93.) The

motion raised the same concerns raised in the present

appeal. The district court denied the motion on the record,

thus preserving the issue for appeal. See Fed. R. of Evidence 103 (“Once the court makes a definitive ruling on the

record admitting or excluding evidence, either at or before

trial, a party need not renew an objection or offer of proof

to preserve a claim of error for appeal.”). If that were not

enough, prior to Agent Zaber’s testimony, the defendant’s

counsel also had the following exchange with the court:

MR. JENKINS: Your Honor, simply for the record,

prior to Mr. Zaber’s testimony, and I believe as a part
No. 06-4232 7

of his testimony, the government will move to add . . .

in videotape. For the record, I filed a motion in limine

to exclude portions of the videotape prior to trial and

the Court has ruled on that. For purposes of the

record, if I could simply incorporate that objection

before it is played so that it would be a part of the trial

record, I’d appreciate it.

THE COURT: All right. I think you preserved the

point.

(Tr. Vol. 2 at 3.) The defendant made a timely objection

stating the specific grounds that he now raises in the

present appeal, therefore we review for abuse of discretion

the district court’s decision to deny the motion in limine,

allowing the videotaped interrogation to be admitted in

its entirety.

B. Right to Remain Silent as to Selective Questions

We now turn to the portions of the videotaped interrogation where the defendant refused to answer Agent Zaber’s

questions. “[T]he Fifth Amendment, in its direct application to the Federal Government and in its bearing on the

States by reason of the Fourteenth 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 v. California, 380 U.S. 609, 615 (1965);

see also Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966);

United States v. Nielson, 392 F.2d 849, 851-52 (7th Cir.

1968). This rule is grounded in a concern that the jury

may draw prejudicial inferences from the defendant’s

silence. Nielson, 392 F.2d at 852. The issue in the present

case is whether this rule applies only when a defendant

has invoked the right to remain silent as to all further

questions thereby terminating the interview or whether

it also precludes any comment at trial about the defen-
8 No. 06-4232

2 In Wick, as in the present case, we also found the error to be

harmless. 416 F.2d at 62.

dant’s invocation of the right to remain silent as to selective questions. This, of course, begs the question whether

a defendant has the right to remain silent as to specific

or selective questions.

We have previously held that the right to remain silent,

in a custodial interrogation, attaches to a defendant’s

refusal to answer a specific question, and therefore the

Government may not comment on the defendant’s refusal

to answer a specific question at trial. In United States v.

Wick, 416 F.2d 61, 62 (7th Cir. 1969), we held that it was

error to introduce an FBI agent’s testimony that a defendant during a post-arrest, custodial interrogation refused

to answer questions about where he obtained certain

counterfeit notes.2

 Further, a number of our sister circuits

have also considered this question. The First, Fourth and

Sixth Circuits have all held that the right to be silent

applies to a defendant’s refusal to answer selective questions. See Greico v. Hall, 641 F.2d 1029, 1034 (1st Cir.

1981) (“Miranda protections apply equally to refusals to

answer specific questions.”) (emphasis added); United

States v. Williams, 665 F.2d 107, 109 (6th Cir. 1981)

(holding that the admission of an FBI agent’s testimony

that the defendant “answered some questions but then

refused to say how much and in what manner he paid for

the vehicle and from whom he purchased it” constituted

plain error); United States v. Ghiz, 491 F.2d 599, 600 (4th

Cir. 1974) (“[I]n declining to answer certain questions, a

criminal accused invokes his fifth amendment privilege or

in any other manner indicates he is relying on his understanding of the Miranda warning, evidence of his silence or

of his silence to answer specific questions is inadmissible.”)

(emphasis added).
No. 06-4232 9

3 In United States v. Bonner, 302 F.3d 776, 783-74 (7th Cir.

2002), we followed the rule defined in Davenport and held that

the admission of testimony about the defendant’s silence during a noncustodial interrogation was not in error. In Bonner, the

court hinted that the custodial / noncustodial distinction might

be of no import. Id. at 783 (“The government suggests we need

not consider Bonner’s argument for the simple reason that he

(continued...)

In response, the Government primarily relies on United

States v. Davenport, 929 F.2d 1169 (7th Cir. 1991), in

support of its argument that “if a defendant starts down

an exculpatory path by providing statements and then

clams up and refuses to expand on those statements, the

latter silence may be introduced at trial.” (Government’s

Br. at 23 (citing Davenport, 929 F.2d at 1174).) Davenport

involved a non-custodial interview by IRS agents. The

court explained: “[The IRS agent] gave [the defendant]

the option not to answer his questions and it is arguable

that when she declined it, all bets were off; that no understanding was violated when he testified to the full range of

her answers, including refusals to answer.” 929 F.2d at

1175. But, our holding in Davenport was entirely dependant on the fact that the interrogation in question in that

case was noncustodial. The opinion repeatedly makes note

of this fact. See id. at 1174 (“As they were not in custody,

there was no implicit threat if they kept mum.”); id. (“As

in this case, there was no implicit threat based on a

custodial situation.”); id. at 1175 (“[O]utside the coercive

setting of a custodial interrogation, willingness to answer

some questions can properly be given greater weight in

deciding whether that willingness should forfeit the right

to object to comment on a refusal to answer a particular

question.”). Davenport is therefore distinguishable from

the present case since Jumper’s interrogation occurred

post-arrest, while in custody.3
10 No. 06-4232

3 (...continued)

was not yet ‘in custody’ during his encounter with Agent Penton;

we prefer, however not to resolve that point, since it is clear in

any event that there was nothing wrong with the reference to

Bonner’s selective silence.”). Since the court in Davenport placed

significant emphasis on the fact that the defendant was not in

custody during the interrogation in question, we decline now to

explore this question posed in Bonner.

Further, the rule in Davenport is rooted, at least in part,

in a concern that the interrogated individual will somehow attempt to exploit this right to silence as to specific

questions at trial. “The privilege against self-incrimination

is not a privilege to attempt to gain an advantage in the

criminal process . . . .” Davenport, 929 F.2d at 1174. See

also United States v. Bonner, 302 F.3d 776, 784 (7th Cir.

2002) (“[T]he law does not provide a sword by which the

defendant may selectively testify as to the merits of his

prosecution, yet shield himself from comment on his

failure to explain incriminating evidence properly admitted

prior to his testimony.”) (quoting McGahee v. Massey, 667

F.2d 1357, 1364 (11th Cir. 1982)) (alteration in original).

But, that concern in not at issue in the present case. Here,

the defendant did not testify on his own behalf. The tape

was not entered into evidence for impeachment purposes,

but rather, as part of the Government’s case-in-chief.

There may be instances where a defendant chooses, for

whatever reason, not to provide additional details, but at

the same time, does not invoke his or her right to remain

silent. See United States v. Pitre, 960 F.2d 1112, 1126 (2d

Cir. 1992); United States v. Goldman, 563 F.2d 501, 502-04

(1st Cir. 1977). To be clear, in order for a defendant to

have a right to remain silent as to a specific or selective

question (and the corresponding right that the prosecution

will not comment on this silence), the defendant must

indicate in some manner that he is invoking that right.
No. 06-4232 11

4 Even if we were to hold that a defendant does not have a right

to remain silent as to specific or selective questions, the admission of the tape in its entirety would still be suspect in light of

Agent Zaber’s warning. In advising Jumper of his rights, Agent

Zaber told Jumper that he did have a right to remain silent as

to specific questions. “If there’s some questions you don’t want

to answer you can just bypass, I don’t want to answer that one.”

(Government Ex. 5A at 1.) The argument could be made that

Jumper did not knowingly waive his rights due to the agent’s

description of them. See Moran v. Burbine, 475 U.S. 412, 421

(1986) (“[T]he waiver must have been made with a full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.”); but see Duckworth

v. Eagan, 492 U.S. 195, 200-01 (1989) (plurality opinion) (holding

that informing a suspect that an attorney would be appointed “if

and when you go to court” does not render Miranda warnings

inadequate).

However, “a suspect need not rely on talismanic phrases

or any special combination of words to invoke the right

to silence.” Bobo v. Kolb, 969 F.2d 391, 396 (7th Cir. 1992)

(quotation marks and citations omitted). At the same

time, silence itself may not be enough to invoke a right

to silence. See Pitre, 960 F.2d at 1125 (holding the Government was entitled to introduce evidence of the defendant’s refusal to answer a question—“He basically looked

at the floor and looked at the ceiling.”—since the defendant

waived his right to remain silent under Miranda and failed

to “resurrect” it by asserting it thereafter).

In the present case, at least with respect to the first

and third instances cited by the defendant, Jumper

invoked his right to remain silent by using the very words

provided to him by Agent Zaber in explaining the Miranda

warning. Recall Agent Zaber specifically instructed

Jumper that “[i]f there’s some questions you don’t want

to answer you can just bypass, I don’t want to answer

that one.”4

 (Government’s Ex. 5A at 1.) In the first instance

in which Jumper claims he invoked his right to remain
12 No. 06-4232

silent, he specifically stated, “I don’t want to answer that.”

In the third instance, he said, “Rather not answer that,”

and “I’m not even gonna answer that.” The second instance

is not as clear since Jumper simply stated that he did not

want to provide a name. This refusal could reasonably be

viewed as a refusal to give a detail rather than an invocation of his right to remain silent. But, with regard to the

last instance, Jumper went so far as to quote the Miranda

warning virtually verbatim in invoking his right. Clearly

by this point, Jumper had invoked his right to remain

silent, and the Government should not have been allowed

to submit that portion of the videotape into evidence. We

find that the district court abused its discretion in allowing

into evidence the portions of the videotaped interrogation

where the defendant invoked his right to remain silent by

stating that he did not want to answer the question.

Finding error, we now turn to whether this error is

harmless since we will only reverse a conviction if the

error is not harmless. An error is harmless if it appears

“beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained.” Ben-Yisrayl v.

Davis, 431 F.3d 1043, 1052 (7th Cir. 2005). In Phelps v.

Duckworth, 772 F.2d 1410 (7th Cir. 1985) (en banc), we

delineated the following factors to consider in determining

whether an impermissible prosecutorial comment regarding post-arrest silence requires reversal:

1. The use to which the prosecution puts the postarrest silence.

2. Who elected to pursue the line of questioning.

3. The quantum of other evidence indicative of guilt.

4. The intensity and frequency of the reference.

5. The availability to the trial judge of an opportunity

to grant a motion for mistrial or to give curative

instructions.
No. 06-4232 13

5 Given the weight of evidence against Jumper, why the

Government simply did not exclude voluntarily the inadmissible portions of the videotape escapes us.

772 F.2d at 1413; see also United States v. Massey, 687

F.2d 1348, 1353 (10th Cir. 1982); Williams v. Zahradnick,

632 F.2d 353, 361-62 (4th Cir. 1980).

The Government elected to admit the videotaped interrogation in its entirety as part of its case-in-chief against

the defendant. This fact cuts in favor of finding that the

error was not harmless. However, outside of the admission

of the tape in its entirety, there was no reference to

Jumper’s statements that he did not want to answer a

question. In no way did the Government highlight these

portions of the videotaped interrogation. Specifically,

Agent Zaber was not asked to testify about Jumper’s

refusal to answer certain questions. Lastly, and most

importantly, there is significant evidence of Jumper’s

guilt in the record.5

 In brief, Officer Huskey, on patrol the

night of October 9, 2005, testified that he discovered the

defendant and two co-defendants in a parking lot at 1:00

in the morning unloading three boxes from a tractor-trailer

into a van. (Tr. Vol. 3 at 7-8.) These three boxes and the

twenty-two additional boxes and three duffle bags still

in the trailer together contained more than 1000 kilograms

of marijuana. (R. 89.) According to Officer Huskey, the

defendant told him that the three boxes which had been

moved to the van contained “dirty socks,” explaining that

he had been on the road for a long time. (Tr. Vol. 3 at 11.)

Officer Warren testified that Jumper told him about

picking up “pot” only to recant once he realized he had let

the word “pot” slip out and insisted that he said “pipe

fittings” instead. (Tr. Vol. 4 at 5.) A total of twelve cell

phones and $14,000 in cash were confiscated. (Tr. Vol. 2

at 29, 53.) Edgar Kelly (one of the co-defendants who
14 No. 06-4232

cooperated with the police and plea bargained) testified

that Jumper had hired him to drive with him from Phoenix

to deliver the marijuana. (Tr. Vol. 1. at 24-25.) Kelly

further testified that he had once before received an

assignment to drive drugs from Jumper. (Id. at 21.)

Throughout the drive involved here, according to Kelly,

Jumper repeatedly called the person who was to receive

the marijuana delivery. (Id. at 31.) Ignoring the portions of

the videotaped interrogation where Jumper invokes his

right to remain silent, we find Jumper’s answers to be

vague and his claim that he did not know what was in

the boxes entirely unconvincing. At best, Jumper’s trial

counsel managed to raise some questions about whether

Jumper was in charge, as Kelly testified, or whether Kelly

was the leader. Regardless, this question does not impact Jumper’s guilt under either charge. In light of the

significant evidence of Jumper’s guilt, we find “beyond a

reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Ben-Yisrayl, 431 F.3d

at 1052.

C. Prejudicial Effect of Comments Concerning

Defendant’s Credibility

We now turn to the second ground offered by the defendant for reversal—that the district court erred in admitting the portions of the videotaped interrogation wherein

Agent Zaber comments on the defendant’s truthfulness.

The defendant argues that Agent Zaber’s comments on the

defendant’s veracity, namely, telling Jumper that he

thought he was lying, should have been excluded since

their prejudicial effect outweighs any probative value,

pursuant to Federal Rule of Evidence 403. Either as

support for a finding of prejudice or as a second ground for

reversal, the defendant cites cases from the Sixth and

Ninth Circuits where the court has held that an officer’s
No. 06-4232 15

6 It appears the district court made such a distinction. Relying

on Federal Rule of Evidence 704, which forbids an expert witness from testifying as to the “whether the defendant did or did

not have the mental state or condition constituting an element

of the crime charged or of a defense thereto,” the district court

did not allow Agent Zaber to testify as to Jumper’s truthfulness,

but the court did allow Agent Zaber’s videotaped comments

into evidence. (Tr. Vol. 2 at 4-5.)

opinion regarding the guilt or innocence of the defendant

cannot be admitted because these comments affect the

trial’s fundamental fairness and invade the province of the

jury. (Defendant’s Opening Br. at 20-21 (citing United

States v. Harber, 53 F.3d 236 (9th Cir. 1995); Cooper v.

Sowders, 837 F.2d 284, 287 (6th Cir. 1988); United States

v. Scop, 846 F.2d 135, 142 (6th Cir. 1988)).)

Although the question of veracity may go to the ultimate

question of guilt or innocence, these issues are not the

same, and Agent Zaber did not directly comment on

Jumper’s guilt. Therefore, the authority offered from our

sister circuits is not on point. Moreover, Agent Zaber’s

videotaped comments are not testimony under oath;6

 the

jury could reasonably have viewed these comments as

a strategic interrogating tactic of the agent. Since the

defendant does not offer any other ground for a finding

that the prejudicial force outweighs the probative value,

we hold that the district court did not abuse its discretion

in admitting the portions of the videotaped interrogation

where Agent Zaber questions the defendant’s veracity.

Regardless, as explained above, any error would have

been harmless.

III. Conclusion

For the foregoing reasons, we AFFIRM the defendant’s

conviction.
16 No. 06-4232

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-13-07