In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-1104

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PLAZE E. ANDERSON, also known as PLAZE THOMAS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00 CR 83—Rudolph T. Randa, Chief Judge.

____________

ARGUED OCTOBER 30, 2001—DECIDED SEPTEMBER 19, 2002

____________

Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit

Judges.

ROVNER, Circuit Judge. A grand jury indicted Plaze

Anderson and four other individuals with conspiracy to

distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 846. Plaze Anderson was the only one

who did not plead guilty, choosing instead to go to trial

on the charge. The jury convicted him, and he was sentenced to life imprisonment, a $1,000 fine, restitution of

$1,420, five years of supervised release, and a $100 special

assessment. Anderson now appeals that conviction.

The evidence against Anderson at trial consisted mainly

of the testimony of eight other individuals who had pled
2 No. 01-1104

guilty and could potentially receive sentence reductions

as a result of their testimony. That testimony established

that Anderson was their supplier of crack cocaine and that

he would front the crack to them and they would pay him

after it was sold. The testimony also indicated that Anderson took precautions to ensure that neither he nor the

individuals working for him were caught, including moving the drugs among a number of locations, using rental

cars to transport the drugs in order to avoid detection,

and ensuring that drug transactions did not take place

at residences at which Anderson lived. Anderson’s defense

strategy was to highlight the lack of physical evidence tying Anderson to the crime. In particular, Anderson emphasized the absence of any audio or video linking him to

drugs and the lack of fingerprints connecting him to the

crime. In response to the parade of witnesses testifying

that he was in fact their supplier, Anderson argued that

they were testifying to reduce their own sentences and

therefore were incredible, and that they had agreed among

themselves to frame him in order to obtain that reduction.

To counter that, the government introduced evidence

that at least some of the defendants implicated Anderson when first arrested, before they had an opportunity

to consult with the other conspirators. Government witnesses testified that the individuals were interrogated

separately precisely so that they would not have the

opportunity to agree on a cover story. Moreover, the government attacked Anderson’s credibility when Anderson

testified in his own defense. Anderson testified that he

did not know or did not really have a relationship with

a number of government witnesses including Franklin

Jones, Armando Barrios, and Antonio Grant, as well as

with his purported supplier “D.D.” Yet the government

introduced phone records indicating that hundreds of phone

calls were placed from Anderson’s cell phone to those

individuals over a period of months (including 206 calls to
No. 01-1104 3

Jones in a three-month period and 200 calls to Barrios in

a one-month period) thus undermining Anderson’s credibility.

On appeal, Anderson raises three challenges to his

conviction. First, he asserts that the trial court denied him

a fair trial by improperly disqualifying a juror on the final

day of trial with no alternate available, thus resulting

in an eleven-member jury. He further argues that the

prosecutor made a number of improper remarks in closing argument, which denied him a fair trial. Finally, he

maintains that the government improperly relied on prior

statements by witnesses to bolster that witness testimony,

thus denying him a fair trial. We consider these arguments in turn, beginning with the challenge to the jury.

I.

On the final day of the trial, the prosecutor informed the

trial court that one of the jurors may have been contacted

by parties associated in the case. The prosecutor then

recounted a series of events that led to his concern. First,

on the preceding day, his office received a call from the

District Attorney’s office in Racine indicating that there

may be a Shelly or a Sandra on one of the current federal juries who knew some of the parties involved in the

case. The judges in two ongoing cases inquired of their

juries, but found no connection. That night, the prosecutor

was contacted by the Racine Police Department, which

had received a call from Christopher Mayfield, one of the

government witnesses in the trial. Mayfield indicated

that he had a conversation with a woman named Holly

Christiansen, an intimate friend of his, who in the course

of the discussion bet him $100 that Anderson would be

found not guilty. Herriot interviewed Christiansen who

initially denied knowing anyone on the jury. In a subsequent interview, Herriot learned that she worked for a
4 No. 01-1104

woman, Alesia Kinlow-Glosson, who was one of the jurors

on Anderson’s jury. Christiansen was reluctant to talk,

fearing that she and her friend would find themselves

in trouble. She wanted immunity for herself or KinlowGlosson before she would provide details. She indicated

that she was to have been on a jury the week prior in

federal court, that Kinlow-Glosson discussed with her

some of the intricacies of jury duty, and that KinlowGlosson currently was a juror in federal court on a Racine

case. Christiansen also stated that she had received a call

from Anderson’s brother telling her that she should not

become involved in the case. Finally, the prosecutor stated

that Christiansen also received a call from the Racine

County Jail from Willie Buckley, the father of Anderson’s

girlfriend, who said she was supposed to have been on the

jury, and that he thought she was going to “work with

them.” She later had the discussion with Mayfield which

was reported to the police. Christiansen’s sister informed

the prosecutor that Christiansen was good friends with

Anderson’s mother, “hung out” with Anderson as well, and

thought that Anderson was “too cool” and would be acquitted because he gets his underlings to do the work

for him. Christiansen’s family also indicated that Christiansen was getting daily updates from Kinlow-Glosson.

The prosecutor noted that Kinlow-Glosson was frequently

on her cell phone during breaks.

Based on the prosecutor’s statements, the court decided

to conduct an on-the-record in camera hearing, at which

the court and the attorneys for each side could question

Ms. Kinlow-Glosson individually. At that hearing, KinlowGlosson acknowledged that she worked with Holly Christiansen, but stated that she was unaware that Christiansen

was a friend of Mayfield. She indicated that Christiansen

had been hired by her brother as the receptionist in their

family-run business a couple of weeks prior, and that

she spoke with Christiansen every day during the trial
No. 01-1104 5

in order to get her messages. She denied having discussed

the case with Christiansen but acknowledged telling Christiansen that she was in federal court on a trial from Racine

County. Kinlow-Glosson then indicated that Christiansen

had called her the day before, which she found surprising

because she never gave Christiansen her number. KinlowGlosson recounted the conversation as follows:

But she called me, gave me the message, and then she

also said to me how is the case going? And she started

asking me well, how long are you guys gonna be there,

that type of questioning. And then she said—what else

did she say to me? She did say—she’s like I want you

to do me a favor. And then I told her that I couldn’t

talk to her anymore, because I started getting kind

of paranoid, because I didn’t even know how she got

the number to call me down here. . . .

Tr. at 584. Kinlow-Glosson further asserted that she did

not know that Christiansen had any relationship to any

of the parties but that she knew Christiansen was from

Racine. Finally, Kinlow-Glosson acknowledged that her

brother had discussed Christiansen with her the day before. He called to ask Kinlow-Glosson what was going on,

and reported that Christiansen told him some federal

people had called her at work, and she told him she was

going to ask Kinlow-Glosson to deny knowing her. KinlowGlosson’s brother then encouraged Kinlow-Glosson not

to lie and to acknowledge that she knew Christiansen.

Kinlow-Glosson maintained that she could be an impartial juror despite those conversations.

After hearing Kinlow-Glosson’s version of events, the

court determined that she had to be removed from the

jury for just cause. The court noted that she was in daily

contact during the trial with a woman who knew the parties involved in the case and who was hired only a couple

of weeks before the start of the trial. Furthermore, Chris-
6 No. 01-1104

tiansen had told Kinlow-Glosson’s brother that she wanted

Kinlow-Glosson to deny knowing Christiansen. The court

determined that some form of contact had clearly been

made during the trial between a juror and someone connected to the parties, and that the court could not take

the chance that the contact was proper as opposed to improper. The court noted that the situation was even more

troubling if it credited the information provided by the

prosecutor but stated that it did not have to do so for its

decision. The court then stated that it was going to declare a mistrial unless the defendant preferred to agree

to an eleven-person jury and exclude Kinlow-Glosson (no

alternates were empaneled), an option that the court

doubted the defendant would take. After consultation

with his attorney, and against that attorney’s advice,

Anderson agreed to proceed with the eleven-person jury

rather than receive a mistrial.

Anderson now contends that the district court abused

its discretion in determining that there was “just cause”

to dismiss Kinlow-Glosson. Federal Rule of Criminal Procedure 23(b) provides that:

Juries shall be of 12 but at any time before verdict

the parties may stipulate in writing with the approval

of the court that the jury shall consist of any number

less than 12 or that a valid verdict may be returned

by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause

after trial commences. Even absent such stipulation,

if the court finds it necessary to excuse a juror for

just cause after the jury has retired to consider its

verdict, in the discretion of the court a valid verdict

may be returned by the remaining 11 jurors.

Anderson claims that the court could not properly have

found just cause for removing Kinlow-Glosson, and that

it improperly relied on hearsay from the prosecutor in
No. 01-1104 7

making its decision. The latter claim is belied by the record, in which the court makes clear that its determination of just cause is not dependent on crediting the prosecutor’s statements. Therefore, the only issue here is

whether the court had a sufficient basis independent of

those statements to find just cause.

“Just cause” is undefined in either Rule 23 or the advisory

committee’s notes, and consequently courts have ascertained its meaning on a case-by-case basis. United States

v. Araujo, 62 F.3d 930, 934 (7th Cir. 1995). Courts have

found just cause to dismiss jurors for a variety of reasons,

including juror illness or unavailability, and evidence

indicating that the juror is no longer able to render an

impartial verdict. United States v. Thomas, 116 F.3d 606,

613-14 (2nd Cir. 1997). Dismissals based on the lack of

impartiality have included myriad factual situations,

including jurors who felt threatened by one of the parties,

who were discovered to have a relationship with one of

the parties, or whose circumstances otherwise changed

during the trial so that they were no longer capable of

rendering an impartial verdict. Id. and cases cited therein;

see also United States v. Symington, 195 F.3d 1080, 1085

(9th Cir. 1999); United States v. Barone, 114 F.3d 1284, 1307

(1st Cir. 1997). That change of circumstances casting

doubt on the juror’s impartiality may include evidence of

improper extrinsic contact. For instance, in Barone, the

court held that there was just cause for dismissal where

a juror was informed during the trial by a Federal Protective Officer that the juror’s cousin had been represented

by defendant’s counsel. Similarly, in United States v.

Edwards, 188 F.3d 230, 235-36 (4th Cir. 1999), the court

found no abuse of discretion where the trial court dismissed a juror who had received a phone call at home

telling him that “those two brothers need your help”

[presumably referring to the defendants], and the juror

indicated that he was surprised that someone had his
8 No. 01-1104

home number and was “shocked” and “scared” after the

incident. In those cases, the juror’s own assessment of

his impartiality was not controlling. In fact, the Edwards

court had not even asked the juror whether he could

continue to serve impartially, 188 F.3d at 236, and the

Barone court held that “a juror’s representations regarding her ability to perform fairly and impartially are not

dispositive,” 114 F.3d at 1307.

We are similarly presented with a situation in which

contact outside the trial casts doubt on the ability of

the juror to serve impartially. Considering only KinlowGlosson’s own testimony, the district court had ample

evidence upon which to question her impartiality and

determine that just cause existed for her dismissal. The

court was presented with a rather bizarre sequence of

events as set forth by Kinlow-Glosson. She informed the

court that Christiansen was hired by her brother to work

at the family-run business a mere two weeks before the

trial, that Christiansen was from Racine, that she had

informed Christiansen that the trial involved Racine,

and that she spoke with Christiansen every day in order

to retrieve her work messages. She further stated that

Christiansen called her during the trial even though she

had never given Christiansen her number, that Christiansen asked her some questions about how the case

was proceeding and then began to request a favor from

her, and that she terminated the conversation because

she “started getting kind of paranoid” and did not know

how Christiansen even got her number. Finally, KinlowGlosson then indicated that she had a conversation with

her brother, in which he informed her that Christiansen,

after speaking with “some federal people” at work, wanted

her to deny that she knew Christiansen. Faced with

that testimony alone, the district court certainly could

conclude that Kinlow-Glosson’s ability to serve impartially

had been compromised. Kinlow-Glosson herself was trou-
No. 01-1104 9

bled by the conversation with Christiansen and with her

brother. Those conversations were enough to indicate that

Christiansen had an interest in the case and that she was

affirmatively attempting to influence the case. The court

was not required to presume that those attempts had fallen

on deaf ears, particularly in this situation in which Christiansen had already obtained Kinlow-Glosson’s cell phone

number without her permission and inquired about the

trial in a manner that made her feel “paranoid,” and in

which Kinlow-Glosson was in daily contact with Christiansen. No further inquiry was required by the court

because Kinlow-Glosson’s own statements established

that she had been adversely affected by outside contact.

Of course, the prosecutor’s information intensifies the

possibility of jury tampering, but that information was

not at all necessary for the district court to properly determine that Kinlow-Glosson should be dismissed for just

cause. The district court did not abuse its discretion in so

determining, and therefore this challenge is without merit.

II.

Anderson next argues that he was denied a fair trial

by the prosecutor’s improper remarks during closing

arguments. He identifies four categories of improper remarks: (1) vouching for the credibility of government witnesses; (2) comments concerning Anderson’s Fifth Amendment right to remain silent; (3) statements regarding

the reasonable doubt standard; and (4) references to the

larger social context of crime and drugs.

Anderson faces an uphill battle in this challenge because

none of the identified statements were objected to at trial,

and therefore our review is limited to plain error. United

States v. Scott, 267 F.3d 729, 740 (7th Cir. 2001). Generally,

our review of improper comments by a prosecutor involves a two-part inquiry. First, we examine the com-
10 No. 01-1104

ments in isolation to determine if they were improper. Id.

If we determine that the comments were improper in the

abstract, then if the remarks do not violate a specific trial

right such as the right against self-incrimination, we must

examine the record as a whole to determine whether those

comments deprived the defendant of a fair trial. Id.; United

States v. Mietus, 237 F.3d 866, 870 (7th Cir. 2001). We

consider five factors in making that assessment: “1.) the

nature and seriousness of the misconduct; 2.) the extent to

which the comments were invited by the defense; 3.) the

extent to which any prejudice was ameliorated by the

court’s instruction to the jury; 4.) the defense’s opportunity

to counter any prejudice; and 5.) the weight of the evidence

supporting the conviction.” 267 F.3d at 740, quoting United

States v. Amerson, 185 F.3d 676, 686 (7th Cir. 1999). Because Anderson failed to object to the remarks when they

were made, the plain error standard additionally requires

that Anderson “ ‘establish not only that the remarks denied

him a fair trial, but also that the outcome of the proceedings would have been different absent the remarks.’ ” Id.,

quoting United States v. Durham, 211 F.3d 437, 442 (7th Cir.

2000) and United States v. Granados, 142 F.3d 1016, 1022

(7th Cir. 1998). Anderson identifies a plethora of statements,

which we will consider in turn but which are not equally

meritorious.

Anderson points to a number of statements by the

prosecutor which he characterizes as impermissibly

vouching for the credibility of the government witnesses.

We have identified two related types of vouching which pose

the danger of undermining the jury’s role as an independent

factfinder. United States v. Renteria, 106 F.3d 765, 767 (7th

Cir. 1997); United States v. Clarke, 227 F.3d 874, 884 (7th

Cir. 2000). A prosecutor may not express her personal belief

in the truthfulness of a witness, because that could place

the prestige of the government behind the witness. 106 F.3d

767. And a prosecutor may not imply that facts not before
No. 01-1104 11

the jury lend a witness credibility, because that invites the

jury to speculate as to the existence of facts outside the

adversarial process of the trial. Id. Anderson identifies a

number of statements in the first closing argument as

examples of impermissible vouching, which we consider

individually:

There’s been a lot of talk about have you been promised

anything? Have you been guaranteed anything? Each

and every one of these Defendants has testified. And

Plea Agreements—you will have a few of those Plea

Agreements here. And Mr. Phillips talked about well,

you will get cooperation no matter what, because the

Government is going to give you—whether it’s truthful

or not. As if each and every one of these Defendants

would come in and somehow pull the wool over all of

our eyes. The Court, the F.B.I., the Racine Police

Department, the U.S. Attorney’s office.

This isn’t the first drug case we’ve handled. We don’t

just trust people off of face value. That’s why there

are investigations. That’s why there’s surveillance.

That’s why people sit out, watch to see who comes, who

goes. That’s why they check phone records.

Tr. at 683-84. These statements considered in the abstract present the danger of vouching identified above,

in that they imply that the jury should trust the credibility determination already made by the government and

the court. If the prosecutor had proceeded to so argue, it

could well have impacted Anderson’s right to a fair trial.

In United States v. Whitaker, 127 F.3d 595, 606-07 (7th

Cir. 1997), however, we held that similar statements approached the direction of impermissible vouching but “had

not yet arrived.” The prosecutor in Whitaker argued as

follows:

When we interview people alleged to be involved in

drug trafficking, ladies and gentlemen, we don’t take
12 No. 01-1104

what these people say at face value. We take precautions to make sure that any individual coconspirator

being interviewed, that he is not told what other

coconspirators—

. . . I believe you will find that the Government has

struck a bargain that is in it’s [sic] favor and that

these plea agreements assure us of what these witnesses are testifying about. . . .

. . . on numerous occasions the defense attorneys tried

to show here that we had suggested to witnesses

what to say, that statements of others had been shared

with them, and that was simply not the case and

you heard the testimony—

Id. at 606. Those statements are analogous to the ones

before us today, implying that the statements here are

not impermissible vouching, although in Whitaker the

defendant had the benefit of objections to the statements

that were sustained by the court. Placing the comment in

the context of the argument and the trial as a whole,

the potential danger that the statements could be interpreted as vouching is somewhat ameliorated. Anderson’s

defense essentially was that the government witnesses

were all lying in order to obtain a reduction in their sentences and that they had agreed to wrongly accuse Anderson. An issue at trial therefore was whether the witnesses

had conferred before making statements implicating Anderson. The above statement represented a response to the

notion that the witnesses could obtain the reduction by

lying. Similar in nature are two statements identified in

the prosecutor’s rebuttal:

[T]hey have all the motive in the world to tell the truth.

Because the only way they’re going to get a time cut

is if they are telling the truth.

I didn’t fall off a turnip truck two days ago. This is

not a complicated case. We look at each aspect of
No. 01-1104 13

this investigation. We have looked to corroborate the

statements of each individual. . . . 

Tr. at 704. We have previously held that it is permissible

for a prosecutor to point out that witnesses are required

to tell the truth under their plea agreements. United

States v. Clarke, 227 F.3d 874, 885 (7th Cir. 2000); Renteria,

106 F.3d at 767. The initial statement is a proper comment

on the plea agreement requirement, and the latter one

again is similar to the statements upheld in Whitaker.

Regardless of whether those statements as a whole neared

the line of impermissible vouching or crossed it, as is

certainly possible here, it does not warrant a new trial as

we will discuss shortly.

Before engaging in that analysis, however, we consider other allegations of impermissible vouching in the

prosecutor’s rebuttal. First, Anderson objects to the following statement [made in regard to testimony by Mitchell

that he had multiple girlfriends simultaneously who

gave him keys, and that he stored drugs at their homes

without their knowledge]:

Mr. Anderson talked about Mr. Mitchell. He was proud

of sex and he had gotten this preposterous story,

according to Mr. Phillips. Doesn’t make any sense

to him. Well, maybe it doesn’t make sense to many

people, but I am here to tell you it happens. There are

some people in this world that are in need. There are

some people in this world that may not—that are a

little bit more trusting.

Tr. at 711. Anderson objects to the phrase “I am here to

tell you it happens.” That remark is a generic statement

which would be understood as asking the jury to apply

common sense and to consider a competing inference,

both of which are proper argument. The prosecutor did

not pair it with any personal comments about drug con-
14 No. 01-1104

spirators particularly or imply any knowledge foreign to

the jury; rather, he placed it in the context of statements

about human nature generally, which may properly be

considered by the jury. Moreover, it was invited by the

defense counsel’s closing argument, in which the defense

counsel stated that it “isn’t true that these girls are that

stupid and that he would somehow secure their trust

and a key to somehow hide the drugs in the ceiling. I

don’t have such a ceiling. That’s—it’s preposterous.” Tr.

at 695. Therefore, the statement is not improper in the

abstract, and considered in context would not adversely

impact the fairness of the trial.

Anderson also identifies a more troubling statement

on rebuttal:

Investigator Herriot may be a big guy, but he’s not

all that intimidating. And I know from personal experience he’s a very nice guy. So if he talks to somebody,

he’s probably talking to them because he’s a nice guy,

not because he’s trying to intimidate a witness that’s

going to testify.

Tr. at 704, 713-14. That is a classic case of injecting facts

within the personal knowledge of the prosecutor into a

case, and is blatantly improper. It is the type of error

that should have been apparent to the prosecutor, and

which will not be tolerated by the courts. Nevertheless,

we must consider whether the error impacted the fairness of the trial generally, and additionally under the

plain error standard we must consider whether the outcome of the trial would have been different absent the

statement.

In the context of the trial as a whole, we cannot say

that the plain error standard has been met. Considering

all of the allegedly improper statements, there is no reason to believe that the outcome of the trial would have

been different absent those challenged statements. The
No. 01-1104 15

tenor of the argument as a whole, placed in context, was

that the government did not disregard standard investigative rules in taking the statements from the government witnesses, which might have allowed for collusion

among them, and that the plea agreements required the

witnesses to tell the truth. It thus related to the defense

presented. Moreover, the court instructed the jury that

they are the ones responsible for determining credibility

and that the statements made in closing arguments do

not constitute evidence. Most importantly, the evidence

against Anderson was overwhelming. The government produced numerous witnesses who testified in detail regarding Anderson’s role in the drug conspiracy, and that

testimony was consistent in many specifics. Although

many of the government witnesses had an interest in

the proceeding because they could potentially reduce

their sentences, the consistency was found as well in

statements taken from initial interrogations before any

opportunity to collude could arise. That undermined significantly Anderson’s defense. Anderson further weakened

his own defense by denying having any relationship with

a number of persons who testified against him, when

phone records established hundreds of calls from his

cell phone to those individuals in a short period of time.

In the context of the trial as a whole, and particularly

under the plain error standard, the statements do not

constitute reversible error.

Anderson identifies other statements as improper, but

they are much less significant than the ones already

considered. In respect to the reasonable doubt standard,

the prosecutor stated that “your job is not to search for

doubt, but to search for the truth.” Even if that is deemed

improper, however, it was invited by defense counsel’s

own improper attempt to define the reasonable doubt

standard in Anderson’s closing argument, and Anderson

fails to identify any way in which that remark could have

altered the outcome of the trial.
16 No. 01-1104

Anderson also states that the prosecutor inflamed the

passions of the jury by stating in his rebuttal argument: “if

you want the cancer to grow, do nothing. If you want a

change, the answer is guilty.” Tr. at 719. Although Anderson characterizes that reference as an allusion to the

drug trade generally, and an attempt to encourage the

jury to use the trial to redress social wrongs, that is not

borne out by the record. The only other reference to a

cancer is in the beginning of the prosecutor’s first closing argument, when the prosecutor refers to Anderson

as a drug supplier in Racine and states that when dealers are removed from a community without removing

the supplier, “they grow back like cancerous growths.”

Therefore, the reference was to the conspiracy before

the jury, and particularly to Anderson’s status as the

supplier for the dealers. That remark is isolated and alone

does not cross the line to an improper comment.

Finally, Anderson argues that the prosecutor impermissibly commented on his failure to testify. The prosecutor in closing argument referred to a conversation

that Anderson had with the police shortly after McCree

was arrested. McCree’s car was stopped because he fit

the description of a person wanted for an armed robbery,

and the police found over 300 grams of crack cocaine in

the car. To provide an alibi for the robbery, McCree informed the officers that he had been at the apartment

in which Anderson and his girlfriend resided. The police

then proceeded to question Anderson but Anderson denied knowing McCree at that time. The government

introduced evidence at trial that McCree was Anderson’s cousin. Anderson later voluntarily went to the

police station to view a photo of McCree, and declared

that he recognized him but did not know his name and

did not know him very well. The police then questioned

Anderson as to why McCree would have in his wallet two

traffic citations issued to Anderson. Anderson indicated
No. 01-1104 17

that he did not know how that happened, and refused

to answer any further questions. In reference to that incident at closing argument, the prosecutor stated:

At this point, Mr. Anderson says I don’t want to answer anymore questions. I am not going to talk anymore. Because he’s afraid he is going to be—he’s

already too close to be associated with Mr. McCree.

He’s the cousin. He has the traffic citations. He doesn’t

want to answer any questions . . . because he’s smart.

He knows only bad things can happen from this point

forward, so he doesn’t answer.

Tr. 678. That was a proper remark by the prosecutor in

the context of this trial. Generally, a prosecutor may

not comment on a defendant’s decision to remain silent.

That prohibition, however, is not absolute. For instance,

where a person chooses to testify, the Fifth Amendment

is not violated by the prosecution’s use of pre-arrest silence to impeach the defendant’s credibility. Jenkins v.

Anderson, 447 U.S. 231, 238 (1980); Ouska v. CahillMasching, 246 F.3d 1036, 1046 (7th Cir. 2001). Anderson

chose to take the stand in this case and testified specifically concerning his decision to remain silent. Anderson

testified:

. . . and at that point in time I told the Cudahy Police

that I don’t want to talk to them about Mr. McCree,

because whatever he did, if he robbed somebody of

something, I know for a fact that I wasn’t involved.

Didn’t have nothing to do with it. . . . .

Tr. at 615. Anderson therefore addressed his decision to

terminate the police interview, portraying it as stemming

from his innocence of the crime under investigation. The

prosecutor in closing argument may properly point out

to the jury another reasonable inference that could be

drawn from that sequence of events. There is no error in

that remark at all, and therefore no constitutional violation.
18 No. 01-1104

III.

Anderson’s remaining claim is similarly unavailing. He

argues that the government deprived him of a fair trial

by improperly bolstering its witnesses’ credibility with

their post-arrest statements. Because no objections were

raised at trial, our review again is for plain error. He refers to the introduction of testimony regarding statements

made by the witnesses to law enforcement officers subsequent to their arrests, which identified Anderson as their

drug supplier.

Federal Rule of Evidence 801(d)(1)(b) defines as “nonhearsay” prior consistent statements by a witness that are

offered to rebut a charge of recent fabrication or improper

influence or motive. Fed. R. Evid. 801(d)(1(B); Tome v.

United States, 513 U.S. 150, 157 (1995). Such statements

are admissible if they satisfy a four-part test:

(1) the declarant testifies at trial and is subject to crossexamination, (2) his prior statement is indeed consistent with his trial testimony, (3) the statement is

offered to rebut an explicit or implicit accusation of

recent fabrication, and (4) the statement was made

before the declarant had a motive to fabricate.

United States v. Ruiz, 249 F.3d 643, 647 (7th Cir. 2001).

Anderson asserts that the statements were not offered

to rebut allegations of recent fabrication or improper motive. A review of the transcript, however, reveals that this

claim is without merit. Anderson’s first citation to such

offending witness testimony is in fact a citation to a crossexamination by his own attorney. That clearly is not an

instance of the government attempting to bolster its

witness.

The remaining transcript citations fare no better. All

but one of them are to redirect examinations by the government, and in every instance we isolated questions in

the cross-examination in which the defense counsel alleged
No. 01-1104 19

that the witness had decided to frame Anderson and/or

that the witness had consulted with coconspirators while

incarcerated in an effort to frame him. That line of questioning was precisely the type of charge of recent fabrication that Rule 801 addresses. The defense counsel’s theory

was that the coconspirators communicated with each

other after their arrests while they were incarcerated

in proximity to each other, and that they decided to

frame Anderson to reduce their own sentences. The postarrest statements by those witnesses implicating Anderson,

taken before any opportunity to consult arose, were thus

admissible to refute the claim that they decided to falsely

implicate him later. There are only two references by

the government to such statements which arguably did

not follow a direct charge of recent fabrication. First, the

prosecutor mentioned in his opening statement that

three witnesses identified Anderson as their supplier

when arrested. Second, on direct examination of government witness Antonio Grant, the prosecutor elicited testimony regarding his post-arrest statement. Those isolated incidents did not deprive Anderson of a fair trial. The

initial incident was not evidence at all, but rather was

an opening statement that accurately reflected the evidence that ultimately would be introduced. Anderson’s

counsel in his opening statement made clear that part of

the defense strategy would be to allege that the government witnesses colluded with each other to frame Anderson. Tr. at 67-68. Moreover, before the prosecutor began

its direct examination of Grant, Anderson’s counsel embarked on that strategy in cross-examining Franklin

Jones by asking him if he and Marcus Caldwell told anyone in Waukesha Jail that they were going to frame

Anderson. Tr. at 96. In any event, the questions by the

prosecutor to Grant could not possibly have deprived

Anderson of a fair trial because that same information would have been elicited on redirect examination of

Grant. In his cross-examination of Grant, Anderson’s coun-
20 No. 01-1104

sel questioned Grant as to the timing of his statement

to police implicating Anderson, and repeatedly asked Grant

if he spoke with other persons at the jail about framing

Anderson. Those questions regarding the timing of his

statement to the police and the implication that he consulted with others to frame Anderson satisfied the requirements of Rule 801 and opened the door to the introduction of the prior consistent statements. The government

elicited testimony regarding those statements on redirect,

and therefore the introduction of that same testimony

on direct examination—even if erroneous—had no impact

on the trial. This claim is without merit.

The decision of the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—9-19-02