NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 08a0321n.06 F iled: Jun e 5, 2008 No. 07-5655 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

UNITED STAT ES O F AMERICA, Plaintiff-Appellee , v. WI LLIA M AB LES, De fe nd ant- Ap pe lla

nt. ) ) ) ) ) ) ) ) ) ON AP P E AL F ROM THE UN I TE D ST AT ES D I STR I CT CO UR T F OR

TH E WE STE RN DI STRI CT OF TEN

NESSEE O P I N I O N

BEF OR E: RO G ER S, C OOK , M c KEA G UE , C ir c uitJudg e s. McK EAGU E, Circuit Judge. Af te r a law en fo rc e me nt se arc h of de fe nd ant Wi lli a m A ble s’ residenc e re veale d ammunition, a f eder al g rand jury returne d a one- count indictment that char g ed Ab le s w ith

be inga fe lon in pos se ssi on of a mmunit ion

. Th e dis tr ic t c ourt su bs e qu e ntl y

de nie d Able s’ mot ion to su

pp re ss the e vid e nc e and state me nts re su lti ng fr om that se arc h, fi nd ingthat A ble s’ liv e -i n g irlfriend ha d actua l authority to consent to the sea

rch and that her consent was voluntary . During the cour se of Able s’ tri al , the district court a lso denied his motion for a mistrial, finding that the g overnme nt’s question ab o u t wh ether Ables’ son wa s in the hallway of the c ourthouse did not provide suff

icient g rounds for a

mistrial. Subsequently , a jury

convicted A

bles of beinga fe lon in possession of ammuniti on as char g ed in the indictment. The district c ourt sentenc ed Ables to 48 months’ imprisonment followedNo. 07-5655

United States v. Ables

Be ca u s e W i l ey

an d J o b e w er e t h e o n l y

wi t n es s es wh o t es t i fi edat t h e s u p p re s s i o nh ea ri n g, 1 this account of the fac ts is based on a combination of their testimony , testimony that the district court and the pa

rties ac knowledg ed wa s fac tually larg ely simil ar. - 2 - by three y ear s of supervise d rele ase. On appea l, Ables arg ues t hat t he dis trict court erre d in denying his moti ons to suppress and for a mistrial. BACK GR OUND I n April 2005, Ag ent Steve Wiley of the B urea

u of Alcohol, Toba cco, F irea rms and Ex plosives rec eived infor mation that Ables had fir ear ms and sold drug s from his residenc e, a tr ailer. I n May 2005, Wil ey conducte d a criminal history sear ch and deter mined that Ables pre viously had been c onvicted of a

felony

. I n N ov e mbe r 2 00 5, Wile y de c ide d to a c t on

t h e p re vio us ly

a c qu ir e d in fo rm a tio n a

bo ut A ble s. Specifica lly , on November 2, 2005, he and f

our ot h er o ff

icer s went to Ables’ r esidenc e at approximately

7:15 p.m. W hen the of

fice rs ar rived at the residence, a

dog was runningaround the y ard and a woman named Cheryl Jobe met them at the front door. The off icer s asked to ente r the 1 residenc e to g et awa

y from the dog , and immediately upon enter ing the trailer, Wiley noticed a shotgun she ll sit ting on a

stereo spe aker

. Wil ey asked Jobe what her

connec tion was to the trailer and she explained that she had lived with A b le s in th e tr a il e r f o r s e v e n o r e ig h t mo n th s a s A b le s ’ g ir lf r ie n d

. Sh e e xp la ined that she seldom left the re sidence , kept her belong ings at the residenc e, fr equently s p en t t h e n i g ht in the master be droom with Ables, and ha d acc ess to all are as of the tr ailer. Jobe also indicated to theNo. 07-5655

United States v. Ables

- 3 - office rs t hat t he residence belong ed to Ables, t hat s he did not pay the bi lls, and that she did not have a set of ke y s for the r esidenc e. Be cause Ables wa s not present at the time and Jobe had control of the residenc e, the of fice rs reque sted J obe’s c onsent to their sea rch of the trailer

. Wil ey

prese nted J obe with a c onsent to sear ch form and a sked her

to sign it. She proce eded to r ead t h e fo rm aloud t o the offic ers, but she w as hesitant to sign it. J obe told the office rs that she wa s nervous be cause office rs wer e pre sent, that she had made bad dec isions in t he past, a nd that if she did not consent to the sear ch then the off icer s would just return with a sea rch w arr ant any

way . Howeve r, Jobe ulti mately signe d the form. Wile y te sti fi e d th a t Jobe a

pp e are d s ob e r at th e tim e of c on se nt. He a lso te sti fi e d th a t w hil e J obe mig ht have se en holstere d wea pons on office rs, the off

icer s’ g uns were only

draw n when the office rs fe lt it necessar

y to chec k a room. While the office rs sear ched, Jobe rema ined in the front room with an off

icer in the event she decide d to stop the searc h. On Au g us t 28 , 2 00 6, a

fe deral g ra

nd jur y ind ic te d Able s o n o ne c ount, c ha rg inghim wi th being a fe lon in possession of ammuni tion, in viol ation of 18 U.S.C. §§ 922(g ) and 924( a)( 2). Afte r holding a hear ing on Ables’ motion to suppress on Nove mber 7, 2006, the district c ourt issued an oral ruling deny ing his motion to suppress. The district cour t also entere d a wr itten order, a dopting its oral finding s and ruling s on the motion to suppress. At trial, Wil ey

testified to essentially

the same f

acts a s he di d at t he suppression hear ing. H e stated that immediately

upon enter ing the house, he s aw what appe are d to be a 12- g aug e shotg un

s h e ll s itti n g o n a s p e a k e r an d late r s e iz e d an o th e r r o u n d o f 1 2

- g a u g e a mm u n it io nin s id e a

b r e a d b o x. T w o o t h e r

o f f i c e r s t e s t i f

i e d t h a t m o r e a m m u n i t i o nw a s f o u n d i nt h e m a s t e r

b e dr o o m . S e v e n d a ysNo. 07-5655

United States v. Ables

- 4 - afte r the sea

rch, o n No v em ber 9, 2005, Ables voluntarily came to talk with W iley at his office

. Wil ey testified that Ables said that the a mmuniti on found at his hous e was his and that while he wa s

awa re that he was pr ohibited from pos sessing firea rms, he wa s not awar e that he w as prohibited fr om possessing a

mmuniti on. D u r in g th e c o u r s e o f

th e tr ia l, A b le s te s ti f

ie d in h is o w nd e f

e n s e . O nd ir e c t- e xa mi n a ti o n, Ables cla imed that the ammunition was his son’s, not his. On cr oss-examination, the gove rnment qu e sti on e d Able s a

bo ut h is s on . Wh e n the g ov e rnme nt a sk e d a qu e sti on a bo ut wh e the r it w a s Able s’ son in the hallway of the cour thouse, defe nse counse l objected a nd later ma de a motion for a mistrial on the basis of that que stion. During the arguments to the district court re g ardingthe motion for a mistrial, the district court asked whether defe nse counsel’s g round for the mistrial was “[t] he fa ct that the jury may have seen the defe ndant’s son in the building? ” J .A. 190. Def ense c o u n s el

re sp on de d th a t:

Not the fa ct that they may have seen him, Your honor , but the fac t that Mr. Powell made re fer ence to him and his descr iption and his loc ation in his questioning bring s up -- S i n ce the child did not testify , that bring s in -- He was a ble to ask Mr. Ables about how big his son was a nd how old his son was, and I think all that was [fi ne ] -- bu t to re fe r t o a p art icu lar c hil d th a t w a s n ot b ro ug ht i n, that w a s n ot a wi tne ss, that th e ir

ob se rv a tio n o f him wo uld have no be ari ng on thi s c a se and

sh ou ld have no be aringon this case be cause he wa s not part of the pr oof in this case . There wer e no picture s prese nted. He was not br oug ht in as a witness; y et, y ou know, Mr. Ables desc ribed him and he was mentioned, a nd that’s fine. But to re fer to a particula

r child with gla sses in the hallway and he ha s been here , number one , Isubmit t hat puts in the mind to the jury they ’re to -- now they ’re g oing out in the hallway and they ’re g oing to look at him, which is ex actly what the court has instructed them they can’ t do, which is g o outs i d e a n d d o additional re se arc h, sim ila

r t o g oin g to t

he sc e ne , I

wo uld su bmi t.No. 07-5655

United States v. Ables

- 5 -

A n d a l s o i t m ay r a i s e i n t h e i r m i n d , w e l l , i f h e w a s h e r e , w h y d i dn ’ th e t e s t i f y, which, of c ourse, puts an additional burden on the defe ndant that should not be there an d wa s , i nes s en ce , i n fe rr ed , Iwo u l d s u b m i t , b y t h e q u es t i o n i n g. J .A. 190-91. The district court denie d the motion for a mistrial, finding that it ha d no indication that any of the juror s saw Ables’ son and, in any event, its instruction to c onsider the e vidence prese nted in the courtroom should suffic e. The jur y s u b s eq u en tly

convicted A

bles as cha

rg ed in the indictment. I n May 2007, the distric t co u rt s entenc ed Ables to 48 months’ imprisonment followed by three y ear s of supervise d rele ase. This timely

appea l followed. AN AL YSI S M ot ion to Suppr e ss We reviewa district cour t’s denial of a

mo t i o n t o suppress under two “compleme ntary standards.” United States v. Miller , 3 1 4 F. 3 d 2 6 5 , 2 6 7 (6 t h C i r. 2 0 0 2 ) ( ci t at i o no m i t t ed ). Fi n d i n gs of fac t a re revie wed for clea

r err or while conclusions of law are revie wed de novo

. See U nited States

v . D illar d , 4 38 F .3 d 6 75 , 6 80 (6 th C ir . 2 00 6) (ci ta tio n o mit te d) . Afa c tua l f ind ingis c le a rl y

err oneous whe n, afte r re viewing the en t i re evidence , this court is left with the definite a nd firm conviction that a mistake ha s been c ommitt ed. See U nite d S t a t es v. Navarro- Camacho , 186 F.3d 701, 705 (6th Cir. 1999). On appe al, Ables a

rg ues t hat t he dis trict court erre d in two way s with respe ct t o its denial of his moti on to suppress by finding that (a) J obe’s c onsent to sear ch Ables’ residenc e wa s voluntary and i n t el l i gen t ; and (b) the police of fice rs had a

rea sonable ba sis to conclude that Jobe had the authority to consent to the sea

rch.No. 07-5655

United States v. Ables

- 6 - V olu nta ry and inte lli ge nt c ons e nt The de termination of “w hether a conse nt to a sear ch wa s i n fact ‘voluntary ’ or wa s the product of dur ess or c oerc ion . . . is a q u estion of fa ct to be dete rmined fr om the totality of all the circ umstances.” Sc hn e c k lot h v . B us tam on te , 412 U.S. 218, 227 (1973). Ac cording ly , “the district court’s de cision reg ardingconsent will not be ove rt urned unle ss it is clea rly err oneous.” United States v. Bueno , 21 F.3d 120, 126 ( 6th Cir. 1994) (citation omitted). To deter mine if consent wa s voluntary , a district co u rt m u s t l o o k at the totality of the circ umstances a

nd examin e t h e fol lowing f actor s: “the ag e, intellige nce, a nd education of the individual; whether the indivi dual understands the rig ht to refuse to consent; whethe r the individual understa n d s h i s o r her constitutional rights; the leng th and nature of dete ntion; and the use of

coer cive or punishing conduct by the police.” United States v. W orley , 193 F.3d 380, 386 ( 6th Cir. 1999) (c itation omit ted). Ables ar g ues that, in permitting the sear ch, Jobe acquiesc ed to the officers’ authority rathe r tha n v olu nta ri ly c on se nte d. Th e dis tr ic t c ourt fo un d th a t: [U] nder the circumstances the c onsent was, in fa ct, voluntary while she, Ms. Jobe, was re luctant and ne rvous, she wa s told the she had a r ight to re fuse c onsent, she g ave it any

way . She was told that she co u l d s t o p t h em at any time, she did not do that. She rea d the consent form, she initialed e ach line, she signe d the form, a nd the fac t that s h e n o w wishes she ha dn’t done that is not sufficie nt to result in a suppression of the e vidence

. J .A. 78-79. There is no basis in the record to conclude that the di strict err ed in deter mining that J obe was of the proper

ag e, educ ation, and intellige nce to understand her rig hts. N or is there any evidenc e that J obe did not understand the office rs’ que stions o r t h e n at ure of the re quest to sear ch theNo. 07-5655

United States v. Ables

- 7 - residenc e. The re is also no e vidence that the officers ever threatene d J obe or attempted to coerce her into giving her c onsent; rather the testimony

from both Wiley

and J obe indicated that, a s the district court de scribed, “ they wer e having a cordia l a nd rea sonable conver sation with e ach other.” J .A. 77. To the extent J obe conte nds that her subjective belief that the officers would sear ch the tra iler any way , see J .A. 86, is g rounds to find that the off icer s acte d coer cively , h er ar gu ment fails. See United States v. Iv

y , 165 F.3d 397, 403 (6th Cir. 1998) (“[A]n ‘ag ent’s stateme nts to the effe ct that he wo uld ob ta in a wa rr ant if [the su sp e c t] did no t c on se nt to t he se arc h d oe s n ot t a int

[the su sp e c t’ s] consent to a sear ch.’” ) (citation omitted). Her e, Jobe, not the ag ents, made a

statement that off

icer s would just return with a sea rch w arr ant if she did not conse nt to the searc h. Moreove r, Ables’ relianc e on W orleyto argue that Jobe simp l y wa s acquie scing to the office rs’ a

uthority is also unpersuasive . I n W orley , w e he ld t

hat “ the dis tr ic t c ourt

did no t c omm it clea r er ror in g ranting Worley ’s m otion to suppress after determining that his statement, ‘You’ ve g ot the ba dg e , I

g ue ss y ou c an, ’ did no t indi c a te c on se nt to the se arc h. ” 19 3 F .3 d at 38 7. I n c on tr a st t o Worley , J obe was informed of her rig ht to ref use to c onsent to the sear ch as evidenc ed by her r eading alou d th e c o n s e n t f

o r m an d s ig n in g it , an d th e o f f ic e r s c o n f r o n te d Jo b e in a p r iv a te residenc e as opposed t o an airport at issue in W orley wh e re “ it [is] e a sy fo r imp lic it thr e a ts o r s ub tle c oe rc ion to exert tremendous pre ssure on a n individual to acquiesce to the office r’s wi shes.” Id. (citations omitted). Acc ording ly , it cannot be sa id the district court erred in finding that J obe’s consent was made both voluntarily

and intellige ntly

. Autho rit y to c ons e ntNo. 07-5655

United States v. Ables

- 8 - The a uthority to c onsent is a question of law to be revie wed de novo

. See U nited States v. Hudson , 4 05 F .3 d 4 25 , 4 31 (6 th Cir

. 20 05 ). Th e F ourt h Am e ndme nt g e ne ra lly

pr oh ibi ts w arr a ntl e ss

sear ches of

homes

. Se e Un ite d Stat es v . H ad dix , 239 F.3d 766, 767 (6th Cir. 2001). This g ener al prohibition, however, doe s not apply wher e the police obtain voluntary consent from the individual wh os e pr op e rt

y is s e arc he d o r f

ro m a thi rd pa rt y wh o p os se sse s c omm on a uth or ity ov e r t he pr e mis e s. Se e Un ite d S

tat es v . G ill is , 3 5 8 F. 3 d 3 8 6 , 3 9 0 (6 t h C i r. 2 0 0 4 ) ( ci t i n g Illinois v. Rodriguez , 4 97 U. S. 177, 181 (1990)) . “Common a uthority is not to be implied from a mer e prope rty interest that a third party has in the prope rty , but from ‘mutual use . . . by persons g ener ally

having j o i n t ac cess or control for

most purposes.’” Id. (q u o t i n g United States v. Matlock , 415 U.S. 164, 172 n. 7 (1974))

. Her e, the district cour

t found t hat J obe had actua l authority to consent to the sea rch. Ables first argues that Jobe lacked a uthority to consent to a sea

rch of his r esidenc e. Ables ne x t contends that to the e xten t the po lic e of fi c e rs we re c on fr on te d w ithan ambi g uo us sit uatio n, the y

ha d a du ty to inquire furthe r about Jobe’s authority and fa iled to do so here. Ables’ a rg uments miss t he mar

k. Whil e Jobe indicated to the off icer s that the trailer belong ed to Ables a

nd that she did not have a key , she also indicate d that she lived with Ables for

se ve n o r ei g ht mon ths a s his g ir lf ri e nd , ke pt he r be lon g ing s the re , s ha re d th e ma ste r b e dr oo m w ith Ables, seldom left the tra iler, and ha d acc ess to all are as within the trailer

. Ables points this court to no authority , and we find none, that sug g ests it is even r eleva nt that J obe “indicated to the offic ers that sh e d id not believe that she ha d the authority to consent to a

se arch.” J.A. 65 . M or e ov e r, no pr e c e de nt s ug g e sts that no t ha vin g a ke y to a re sid e nc e sh ou ld

overr ide all other indicia

that J obe had the requisite contr ol of the re sidence to consent to the sea rch.No. 07-5655

United States v. Ables

- 9 - I ndeed, g iven that J obe told office rs she lived with Ables for seven or eig ht months, that she seldom left the tra iler, and that she had acc ess to all are as, her not having a key

to the residenc e sug g ested to t he of fi c e rs that sh e did

no t need a key

. He re , Job e ’s de sc ri pti on of her mut ua l us e of the pr op e rt

y wa s e no ug h f

or the of fi c e rs to establish her a ctual author ity to consent. I t was not, as Ables contends, an ambig uous situation that require d further

inquiry

. See, e.g., United States v. G rayer , 232 F. App’ x 446, 449 (6th Cir. 2007) (finding that “off

icer s were not c onfronted w ith an ambig uous situation” about consent whe n person

c on se nti ngwa s “ the ho me ow ne r’ s li ve -i n g ir lf ri e nd ” ); Un ite d S

tat es v . M oo re , 917 F.2d 215, 222- 23 (6th Cir. 1990) (finding that live-in g irlfriend was a joint occupa nt of the def

endant’ s residenc e that had com mon a

uth or ity ov e r t he pr e mis e s to c on se nt t o s e arc h o f t he pr e mis e s) ; U

n it e d S ta tes v. Kirkpatrick , No. 97-5583, 1998 WL869978, at *3 (6th Ci r. De c. 1 , 1 9 98) (f inding that g irlfriend could validly

consent to sea

rch of residenc e that she shared wit h the def endant a nd in which she ha d

acc ess to all of its are as). Acc ording ly , the district court did not err when it denied A

bles’ motio n t o s u p p ress, a nd there fore the evidenc e and the s tatements at issue appropr iately wer e not suppressed as fruit of the poisonous tree. Motion for a Mistrial We employ

an abuse -of- discretion standa rd whe n revie wing a district cour t’s d en i al of a motion for a mistrial. See U nited States v. Cope , 312 F.3d 7 5 7 , 7 79 (6th Cir. 2002). Duringthe g overnme nt’s cross-e x amination of Ables, counsel asked Ables if his son was “ the y oung man out in t he ha llw ay

we ari ngg la ss es? ” Defens e c ouns e l ob je c te d o n g ro un ds that th e “ pr os e c uto r i sNo. 07-5655

United States v. Ables

- 10 - testify ing,” but the district court overruled that objection. On t he basis of t hat s ingle question, Ables moved for a

mistrial the following da y that the district court subseque ntly denied. Ab le s argues the qu e sti on wa s im pr op e r f or tw o r e a so ns : ( 1) it p e rm itt e d th e jur or s to re ly upon their own investig ation by sugges t i n g t h ey rely

upon their obser

vation of Ables’ son in the hallway and (2) it shifted the burden to Able s by raising in the j ury ’s m ind the question of why a son, wh o w a s ava ila

ble in t he ha llw ay , d id n ot t e sti fy . H is a rgume nts fa il. We h a ve e xpla ine d th e sta nd ard s f or e va luatin g su c h c la ims : We evaluate claims of prose cutorial misconduct using a two-step inquiry . “F irst, the court must deter

mine if the g overnme nt’s statements wer e improper .” United States v. Abboud , 4 38 F .3 d 5 54 , 5 84 (6 th C ir . 2 00 6) . I f we d e te rm ine that th e state me nts wer e in f act improper, then we “must decide whether the statements wer e fla g rant.” Id . T he “ fl a g ra

nc y inq uir y ” inv olv e s f

our f a c tor s: ( 1) wh e the r the re mark s te nd e d to mislead the jury

or to prejudice the ac cused [ including whether the t rial j udg e g ave an appr opriate cautionary instruction to the j ury ]; (2) whe ther they wer e isolated or e x t e n s i v e ; ( 3 ) w h e t h e r

t h e y w e r e d e l i b e r a t e l y o r a c c i d e n t a l l y p l a c e d

b e f o r e t h e j u r

y; and (4) the streng th of the evide nce a g ainst the ac cused. Id. (citation omitted). United States v. Roac h , 502 F .3 d 425 , 432 (6 th Cir . 200 7) (a lte ratio n in or ig ina l) ; see also United States v. W

iedyk , 71 F.3d 602, 607- 08 (6th Cir. 1995) (a pply ing sa

me ana ly sis to review a

dis trict court’s de nial of a mistrial with respe ct to two improper que stions asked by a prose cutor). Whether questi on was im proper We beg in, an d en d , our ana ly sis of Ables’ prose cutorial misconduct c laim by considering whether the prosecutor’s question was improper

. Se e Un ite d S tat es v . B ar

ne tt , 398 F.3d 516, 522 (6th Cir. 2005). “I t is axiom atic that a def endant in a c riminal trial need not testify or produc e any evidenc e, and that a prosec utor may not comment on the absenc e of suc h.” United States v. Bond , 2 2 F. 3 d 6 6 2 , 6 6 9 (6 t h C i r. 1 9 9 4 ) ( ci t i n g United St ates v. Drak e , 885 F.2d 323, 323 (6th Cir. 1989)).No. 07-5655

United States v. Ables

- 11 - Howeve r, a pr osec utor may “summarize the evide nce a nd comment on its quantitative and qualitative sig nificanc e.” Id . “Althoug h a prosec utor is e ntitled to comment on a def endant’ s failure to call witnesses to c ontradict the g overnme nt’s case , the prosec utor must avoid commenting in suc h

a wa y that he trea ds on the defe ndant’s constitutional rig hts and privileg es.” Un ite d S tat es v . Clar

k , 982 F.2d 965, 968 ( 6th Cir. 1993) (citation omitted). We rec og nize that improper bur den-shifting is a violation of due proc ess. S e e U n it e d S ta te s v . Ne wton , 3 8 9 F. 3d 631, 638 (6th Cir. 2004), vacate d on other grounds , 546 U.S. 803 (2005). The que stion at issue was not improper. Able s chose to take the stand and te stify on his own behalf . Ables himself re peate dly raised the issue of his son when he claimed that the a mmuniti on found in hi s tr a il e r w a s h is s o n ’ s , n o t h is

. B o th p arti e s a g r e e th a t th e g o v e r n me n t’ s line of questioning a

bout Ables’ son under

such circ umstances wa s permitted as a g ener al matter. He re , it is und isp ute d tha t the g ov e rnme nt did no t dir e c tly c omm e nt on A ble s’ fa ilure to c a ll his son to testify , y et Ables argues t hat t he gover nment’s i solated question about whether t he son wa s in the hallway

was itself g rounds for a

mistrial. That argument fails. Read in conte x t, the disputed question came at the end of a ser ies of questions that re lated t o t h e s i z e o f A b l es ’ s o nan d d i d n o td i re ct l y

s u gges ta n y

t h i n g ab o u th i s s o nn o tt es t i fy i n g. Moreove r, the que stion was not intended to shift t h e b u rd en of pr oof, sug g est the jury rely on evidenc e outside the recor d, or ot herw ise mislead the j ury or prejudice the defe ndant. Rather, the disputed question was a pa rt o f a l i n e o f questioni ng intended simply to dispel Ables’ own sug g estion that the ammunition was his son’s, not his.No. 07-5655

United States v. Ables

- 12 - Even if the q u es t i o n sug g ested the son c ould have testified but did not, it would not have been imprope r g iven that Ables invited the que stion based on his trial strateg y o f ar gu i ng the

a mmunit ion

wa s h is s on ’s , not his. Se e Ba rn e tt , 398 F.3d at 522-23 (prose cutor’s r emar ks must be considere d within the context of the trial as a whole, with attention to whether they may have be en invited by defe nse counse l’s conduct) . I ndeed, a pros ec u t or is allowed to comment on the f ailure of a de fenda

nt to call corroborating witnesse s for its theories unde r such c ircumstance s. See B ond , 22 F.3d at 669 (finding prosec utor’s comments ab o u t lack of a libi witnesses did not warra nt

re ve rs a l) ; Newton , 3 89 F .3 d at 63 8 ( fi nd ing no misc on du c t in pr os e c uto r’ s r e ply

to d e fe ns e ins inu atio ns that go ve rnme nt hid e vid e nc e fr om t he jur y ); United States v. Be ddow , 957 F.2d 1330, 13 36 -3 7 ( 6th Ci r. 19 92) ( pr os e c uto r’ s c omm e nt a bo ut f a ilure of de fe nd ant’ s b ro the r t o te sti fy in

su pp or t of de fe nd ant’ s c la im that br oth e r l oa ne d h im m on ey di d no t warr ant r e ve rs a l) ; Traylor v. Price , 239 F. App’ x 235, 242 (6th Cir. 2007) (stating “the pr osecutor is pe rmitted to comment on the i mp r o b a

b il it y o f th e d e f

e n d an t’ s th e o r

y o n c e a d e f

e n d an t ma

k e s an is s u e le g a ll y r e le v a n t by

a dv anc ingtha

t th e or y ” ); se e als o U

nit e d S tat es v . S c hu ltz , 698 F.2d 365, 367 ( 8th Cir. 1983) (stating “[t] he prose cutor is fre e to comment on the failure of a def endant to ca ll an available alibi witness”) ( c i t a t i o no m i t t e d ) ; Un i t ed S t ates v. Bubar , 567 F.2d 192, 199 ( 2d Cir. 1977) (holding “[t] he prosec utor is entitled to comment on the defe ndant’s fa ilure to ca ll witnesses to contradict the f actua l

c ha ra c te r o f t he g ov e rnme nt’ s c a se , . . . a s w e ll a s h is f a ilure to s up po rt his ow n fa c tua l the or ie s w ith wi tne sse s” ) ( c itatio ns omi tte d) ; but see United States v . Hernande z , 145 F.3d 1433, 1439 (11th Cir. 1998) (stating “a pr osecutor ma y not comment about the abse nce of witnesses or other

wise attempt to shift the burden of pr oof”)

.No. 07-5655

United States v. Ables

- 13 - Acc ording ly , the question at issue wa s not imprope r and ther efor e the district cour t did not

a bu se its dis c re tio n in den y ingAb le s’ mot ion fo r a mis tr ia l. T he re is n o n e e d f or us to a dd

re ss wh e the r t he qu e sti on

wa s f la g ra nt b e c a us e the qu e sti on wa s pro pe r in the fi rs t in sta nc e . O n th a t ba sis

a lon e , w e a ff

ir m th e dis tr ic t c ourt ’s de nia l of Ab le s’ mot ion

fo r a mis tr ia l. CO NC LU SION F or a ll the a fo re me nti on e d r e a so ns , w e AF F I RM the jud g me nt o f t he dis tr ic t c ourt
.