United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-3106

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of North Dakota.

Clifton Patterson, *

*

Defendant - Appellant. *

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Submitted: May 18, 2012

Filed: July 17, 2012 

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Before RILEY, Chief Judge, BYE and MELLOY, Circuit Judges.

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MELLOY, Circuit Judge.

Clifton Patterson was found guilty of aiding and abetting the use and carrying

of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1), and

possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2). Prior to trial, Patterson had also pled guilty to bank robbery in violation

of 18 U.S.C. § 2113(a). On appeal, Patterson alleges that prosecutorial misconduct

during closing argument requires reversal of his firearm convictions and a new trial

on the merits. For the reasons stated below, we affirm.
I.

On December 10, 2009, the government filed a seven-count superseding

indictment charging Patterson and co-defendants William Collins and Debra Jensen

with several offenses stemming from a bank robbery that occurred in Gilby, North

Dakota. On May 31, 2011, Patterson entered an open guilty plea to count one of the

indictment for bank robbery. At that time, he did not enter a plea under count two,

for use and carrying of a firearm during and in relation to a crime of violence, or

under count three, for possession of a firearm by a convicted felon. On July 28, 2011,

the government filed an information certifying Patterson had been convicted of six

prior violent felonies. The government indicated its intent to seek an enhanced

sentence of life imprisonment for count two under 18 U.S.C. § 3559(c)(1).

Patterson's trial on the firearm charges took place over three days in August

2011. Video surveillance from the day of the robbery, as well as the testimony of the

bank teller present on that day, established that Patterson had carried into the bank

and pointed at the teller what appeared to be a handgun. However, it was ultimately

determined that Patterson had been carrying a BB gun pistol, which does not qualify

as a firearm under federal law. Collins, on the other hand, brought into the bank a

sawed-off shotgun, which does qualify as a firearm, and stood with it in the bank

while Patterson filled bags with money.

Collins testified that Patterson had originally suggested obtaining a shotgun,1

had sawed off the barrel, and had planned to use it during the robbery. On the way

to the robbery, Collins and Patterson both drove separate stolen vehicles part of the

way before driving together to the bank. Collins said that both the shotgun and the

BB gun were in the vehicle driven by Patterson. It wasn't until the last minute outside

Because both Patterson and Collins were prior felons, Jensen wasthe one who 1

actually purchased the gun.

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the bank, according toCollins, that Patterson decided Collins should take the shotgun

while Patterson would put the money in the bag. The two men left the bank together

and, after switching cars once again, returned toCollins's apartment. Collins testified

that, sometime after the robbery,Jensen and Patterson disposed of the shotgun, which

was never recovered. Patterson did not testify at trial, and much of his defense was

dedicated to undermining the credibility of Collins's testimony.

During closing argument, the prosecutor made two arguments that Patterson

contends were improper. The first comment occurred while the prosecutor was

addressing the evidence that Patterson had aided and abetted the use of the shotgun. 

The prosecutor told the jury that Patterson and Collins both "walk[ed] in the

bank—really, ladies and gentlemen, they both walk[ed] into the bank and isthere any

possible conception that Mr. Patterson didn't aid and abet the use of [the shotgun],

didn't know what was going to happen? There's no evidence of that. The evidence

is the exact opposite."

Defense counsel immediately objected and suggested that the government was

improperly "asking if there is evidence that Mr. Patterson is innocent. And of course

Mr. Patterson has no burden to prove his innocence, and I think this line of argument

is shifting the burden of proof in an improper direction." With the jury still in the

courtroom, the district court acknowledged defense counsel's concern but overruled

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its objection, stating:

Your statement on the law is correct. The defendant is under no

obligation to prove anything and the jury's been instructed on that.

Anytime you argue about the absence of evidence you can fall into that

trap. However, if you follow the Court's instructions mere absence of

evidence is a fact that can establish a fact under certain circumstances.

The HonorableRalphR. Erickson, United States DistrictJudge for the District 2

of North Dakota.

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I don't think that [the prosecutor's] argument has crossed the line. I

would just ask [the prosecutor] to be careful as [it] sets forth the

argument, and I'll instruct the jury just to remember that the burden does

not ever shift to the defendant to prove his innocence.

The second comment occurred during part of the government's rebuttal. The

defense had used much of its own closing argument to attack Collins's credibility and

cast doubt on Patterson's purported possession of the shotgun before and after the

robbery. The government's rebuttal therefore focused in part on defense counsel's

credibility attacks. At one point, the prosecutor referenced a defense argument that

questioned whether any evidence other than Collins's testimony showed that

Patterson was in a car with the shotgun. The prosecutor suggested to the jury that

defense counsel was "[t]rying to confuse you about the simple issue about these two

individuals entering the bank, using a shotgun to rob the bank and the store and all

he's doing is trying to confuse you." The prosecutor went on to address various

argumentsthat the defense had used to undermine Collins's credibility and continued

to assert they were not relevant to the case. The prosecutor concluded by telling the

jury, "the facts here are simple. . . . They both have the same intent. They both

assisted in the same acts, and one of those acts was using this shotgun."

On August 11, 2011, a jury acquitted Patterson of using or carrying of the

firearm, but it found him guilty under count two of aiding and abetting the use and

carrying of the shotgun. The jury also found Patterson guilty under count three. He

was sentenced to the statutory maximum 240-month sentence under count one and

a concurrent 262-month sentence under count three. Pursuant to the mandatory

penalty in § 3559(c)(1), Patterson was sentenced to life imprisonment under count

two.

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II.

"A trial court is vested with broad discretion in controlling closing arguments

and we will reverse only on a showing of abuse of discretion." United States v.

Coutentos, 651 F.3d 809, 821 (8th Cir. 2011) (internal quotation marks omitted).

Where a prosecutor makes improper comments during closing arguments, "we

consider the cumulative effect of the improprieties, the strength of the evidence

against the defendant, and whether the district court took any curative action." United

States v. Swift, 623 F.3d 618, 623 (8th Cir. 2010) (internal quotation marks omitted).

"'It is well established that the Fifth Amendment forbids either comment by the

prosecution on the accused's silence or instructions by the court that such silence is

evidence of guilt.'" United States v. Sandstrom, 594 F.3d 634, 661 (8th Cir. 2010)

(quoting United States v. Gardner, 396 F.3d 987, 988 (8th Cir. 2005)). Improper

comment on a defendant's decision not to testify can be indirect. "When the

prosecutor has neither directly commented on the defendant's silence, nor

demonstrated an intent to draw attention to that silence, the issue is whether the jury

would naturally and necessarily understand the comments as highlighting the

defendant's failure to testify." Gardner, 396 F.3d at 989 (internal quotation marks

omitted). Furthermore, the government "may not improperly suggest that the

defendant has the burden to produce evidence." United States v. Burns, 432 F.3d

856, 861 (8th Cir. 2005) (internal quotation marks omitted).

Patterson argues that the prosecutor's comments improperly drew attention to

the lack of evidence showing Patterson's innocent state of mind, which could only

have been introduced by his own testimony. See United States v. Triplett, 195 F.3d

990, 995 (8th Cir. 1999) (reversing a conviction because prosecutor improperly

commented on the absence of evidence where the defendant alone possessed the

information necessary to contradict the government's case). Assuming that this

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comment was improper, however, we do not believe that it could reasonably have

affected the jury's verdict.

Any prejudice caused by the prosecutor's isolated comment was sufficiently

cured by the district court's immediate statement to the jury and its final jury

instructions. See United States v. Chase, 451 F.3d 474, 481 (8th Cir. 2006)

(assuming prosecutor's isolated comments were improper, no prejudice occurred

when the court gave an immediate curative instruction). Following defense counsel's

objection to the comment, the district court gave an immediate curative instruction

in open court, stating that the defendant never had a burden to prove his innocence. 

In the final jury instructions, the court twice stated that the defendant did not have a

burden to prove his innocence. The court also explained that the jury could not even

consider Patterson's failure to testify in its deliberation. Moreover, unlike a case such

as Chase, where the complained-of comments came during rebuttal argument when

the defense had no opportunity to respond to them, Patterson's counsel had a full

opportunity to address the burden of proof during his own closing statement.

Patterson argues that the district court's curative actions were insufficient

because its statement in open court that the "absence of evidence is a fact that can

establish a fact under certain circumstances" was confusing, and therefore may have

led the jury to improperly believe that Patterson had a duty to introduce exculpatory

evidence. We disagree. In addition to its three separate statements that Patterson did

not have a burden to prove his innocence, the district court also included in the final

jury instructions a statement that "[t]he presumption of innocence alone is sufficient

to find the defendant not guilty and can be overcome only if the Government proves,

beyond a reasonable doubt, each element of the crime charged." Jurors are presumed

to follow the court's instructions. United States v. Smith, 508 F.3d 861, 866 (8th Cir.

2007). We believe the district court's instructions were sufficient to cure the

prosecutor's isolated improper comment and to prevent any prejudice to Patterson.

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III.

Patterson next argues that during its rebuttal argument, the government

improperly attacked the integrity of defense counsel. According to Patterson, the

prosecutor's statement to the jury that defense counsel was "trying to confuse" it

about a "simple issue" improperly drew attention to defense counsel's conduct and

therefore requires reversal. Patterson did not make a contemporaneous objection

during trial, so we review for plain error. United States v. Jewell, 614 F.3d 911, 927

(8th Cir. 2010). Under plain error review, relief is available only if the defendant

shows: "(1) an error; (2) that is plain; and (3) that affects substantial rights." United

States v. Lomeli, 596 F.3d 496, 504 (8th Cir. 2010) (internal quotation marks

omitted).

Citing United States v. Holmes, 413 F.3d 770 (8th Cir. 2005), Patterson argues

that this court has previously reversed a conviction where a prosecutor improperly

told the jury that defense counsel, in effect, wastrying to confuse the jury. Patterson's

argument stretches our holding in Holmes beyond recognition. Patterson is correct

that the prosecutor in Holmes made comments about the defense counsel using

"smoke and mirrors" and wanting to "distract" the jury. Id. at 775. However, these

comments were part of a series of statements directed personally at the defense

counsel, which culminated in multiple comments that "he" and "they" (presumably

referring to defense counsel and the defendant) needed to "get their stories straight."

Id. We interpreted these comments as an accusation that defense counsel was

"conspiring with the defendant to fabricate testimony," and concluded that they

"encourage[d] the jury to focus on the conduct and role of [the defendant's] attorney

rather than on the evidence of [the defendant's] guilt." Id.

The comments made by the prosecutor in this case do not rise to the level of

those in Holmes. Rather than disparaging defense counsel by describing his

arguments as "trying to confuse" the jury, the full context of the prosecutor's rebuttal

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shows that he was attempting to distinguish the defense's attack on Collins's

credibility from the uncontroverted facts of the case. The prosecutor made reference

to multiple credibility attacks made by the defense counsel, and each time tried to

portray them as irrelevant to the fact of the use of the shotgun during the robbery. "It

is not improper for the government to comment on its interpretation of the evidence."

Jewell, 614 F.3d at 928 (finding no plain error in a prosecutor's statement that a

"smoke and mirrors" defense wasmisleading the jury because the "commentsreferred

to the prosecutor's view of the strength of the theory of defense, and did not suggest

fabrication of testimony"). We find no plain error in the prosecutor's comments.

IV.

Accordingly, we affirm the decision of the district court.

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