United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-2742

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United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Richard L. Davis, *

*

Appellee. *

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Submitted: December 16, 2003

Filed: May 10, 2004

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Before MELLOY, BEAM, and COLLOTON, Circuit Judges.

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MELLOY, Circuit Judge.

A jury convicted Richard Davis of one count of possession with intent to

distribute more than fifty grams of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1). Davis filed motions for judgment of acquittal and a new trial. The

district court granted the Motion for New Trial on an issue raised sua sponte: that the

government had improperly and prejudicially shifted the burden of proof. The

government appeals the grant of the Motion for New Trial. We reverse.
1

 There was considerable confusion at oral argument about the name and

spelling of the type of pants at issue. We have elected to refer to the pants as “Jabots”

because this is the term used by the parties throughout the litigation. 

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I.

On July 26, 2002, Davis was arrested in a hotel room with two other men,

Anthony Chaney and Terry Harris. The specifics of the moments surrounding the

arrest are disputed. 

The government presented evidence to show the following: Davis was sitting

on the couch when the officers entered the apartment. As the officers approached

Davis, he stood up and reached into his pants pocket. The pants he was wearing were

very tight, so that he could not button the top button nor zip them entirely. Due to the

tightness of the pants, Davis struggled to remove an object from his pants pocket.

When he succeeded in taking the object from his pocket, he attempted to conceal it

between the couch cushion and the frame. The officers then put Davis against the

wall with the two other men. They immediately went to the couch and retrieved the

object, which was later tested and found to be crack cocaine. 

Davis presented evidence in an attempt to show that Davis never possessed the

crack cocaine. Davis claimed the crack cocaine belonged to Chaney, who was sitting

next to him on the couch, and Chaney hid it in the couch when he heard a knock at

the door. Chaney then got up to answer the door, leaving Davis on the couch. Davis

also testified that he did not own or ever wear tight pants, and that he wore baggy

pants. He claimed that this was the practice of many of the young males in the

African American community, and that these baggy pants were referred to as

“Jabots.”1

 
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Whether or not Davis struggled to and then finally succeeded in taking the

crack out of his pants pocket was a major issue at trial. The defense argued that the

government’s story was implausible, because Davis was wearing loose-fitting Jabots

on the night in question. During Davis’s direct examination, Davis modeled the pants

he was wearing for the jury, stating that the pants were similar to the Jabots he was

wearing on the night of the arrest. He described what Jabots looked like, who in the

community wore them, how they were expected to fit, and how he liked to pay

attention to style.

On cross-examination, the government questioned Davis about the Jabots he

wore on the night of the arrest. The exchange between the prosecutor and Davis was

as follows:

Q. . . . Now, did you wear your Jabots today?

A. Uh-uh.

Q. How come you haven’t worn your Jabots to show the jury what

your Jabots look like?

Defense counsel: Objection, relevance, Your Honor.

The Court: Sustained.

Q. Do you still have them?

A. Do I still have them?

Q. Yes.

A. Yeah. 

That Davis claimed to be wearing baggy pants on the night of the arrest was also

addressed during his re-direct examination, as well as in the defense’s closing

argument. 

After the four-day trial, the jury deliberated for two days. During the second

day of deliberations, the jury informed the district court that it could not reach a

decision. The district court gave the jury an Allen charge, and four hours later the

jury returned a guilty verdict. See Allen v. United States, 164 U.S. 492 (1896). 
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The defense filed a Motion for Judgment of Acquittal and Motion for New

Trial. The district court responded with a Memorandum and Order, in which the

court referred to the exchange above, and expressed concern that it “may have

prejudicially shifted the burden of proof to defendant on an important aspect of the

government’s case.” After receiving briefing from the parties on this issue, the

district court granted the Motion for New Trial based on the questions the prosecutor

asked Davis on cross-examination. 

II.

The government argues on appeal that the district court erred in granting a new

trial on the basis that the government improperly shifted the burden of proof to the

defendant. We review a grant of a new trial for an abuse of discretion. United States

v. Lee, 274 F.3d 485, 493 (8th Cir. 2001). “The test for reversible prosecutorial

misconduct has two parts: (1) the prosecutor’s remarks or conduct must in fact have

been improper, and (2) such remarks or conduct must have prejudicially affected the

defendant’s substantial rights so as to deprive the defendant of a fair trial.” United

States v. Hernandez, 779 F.2d 456, 458 (8th Cir. 1985); see also United States v.

Conrad, 320 F.3d 851, 855 (8th Cir. 2003). 

We must first determine whether the prosecutor’s questions were improper.

The case most directly on point is United States v. Long Feather, 299 F.3d 915 (8th

Cir. 2002). In that case, Long Feather was accused of kicking a man in the head, who

died shortly afterward. Id. During trial, defense counsel inquired into the

government’s failure to produce the sandals Long Feather wore the night of the

incident, and its failure to test them to determine whether they could have caused the

victim’s injuries. Id. at 918. In its closing argument, the government pointed out

that, according to Long Feather’s testimony, the sandals were still in his possession.

Id.
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On the appeal of Long Feather’s conviction, this Court held that, “[w]hile a

prosecutor’s comments on a defendant’s failure to testify can constitute error,” see

United States v. Moore, 129 F.3d 989, 993 (8th Cir. 1997), comments on defendant’s

failure to produce his sandals were not improper. Long Feather, 299 F.3d at 918.

The Court reasoned:

The comment certainly carries the implication that Mr. Long Feather

should have produced the sandals, and it might have been improper if

Mr. Long Feather had had a constitutional right to withhold the sandals

from evidence. But we note that the Fifth Amendment prohibits only

compelled “testimonial” evidence, United States v. Hubbell, 530 U.S.

27, 34-35 (2000), . . . and that the sandals are not testimonial evidence.

Id. at 919. 

The Court found that Long Feather could have been compelled to produce the

sandals, just as defendants can be compelled to produce a blood sample, and some

types of documentary evidence. Long Feather, 299 F.3d at 919. “Thus government

counsel’s comment on Mr. Long Feather’s failure to produce the sandals could not

have been a comment on Mr. Long Feather’s decision to exercise a [F]ifth

[A]mendment right. It therefore was not improper.” Id. 

The facts of this case are strikingly similar. As in Long Feather, there was an

issue at trial concerning something the defendant was wearing during the alleged

crime and the defendant implied that the government should have produced the

evidence. As in Long Feather, the prosecution suggested, without stating outright,

that the defense should have produced the item as evidence. The argument on appeal

was the same: that this comment impermissibly shifted the burden of proof to the

defendant. However, as in Long Feather, this comment is not improper, because it

is not a comment on a Fifth Amendment right. Thus, it cannot satisfy the test for

reversible prosecutorial misconduct. See Hernandez, 779 F.2d at 458. We therefore
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find the district court abused its discretion in granting a new trial on the grounds that

the prosecutor impermissibly shifted the burden of proof.

The judgment of the district court is reversed, the conviction is reinstated, and

the case is remanded for sentencing.