An Important Lesson On Error Preservation, An Open Miranda Question, and Knowledge of Interstate Movement in FIP Cases

United States v. Potts, No. 10-10257 (5th Cir. June 15, 2011) (Smith, DeMoss, Owen)

A general rule of preserving error at trial (which I'm shamelessly stealing from someone else) is to keep asking for things until the court says no. Failure to do so, as Potts illustrates, lands you in the dark realm of plain error review.  Not a good place to be when, as in Potts, the question of whether there was error at all concerns an issue that remains open in the Fifth Circuit. Oh, and one more thing: to be guilty of being a felon in possession of a firearm, need a defendant know that the firearm had moved in interstate commerce? Important issues all.

So what happened here? Potts was stopped by Officer James (for reasons that aren't at all clear to me from the opinion). Thence,

James instructed Potts to park the car and shut off the engine. Potts began to reach under his seat, at which point James ordered Potts to show his hands. Potts did not immediately comply with that command and instead continued to reach under the seat. James approached the vehicle and ordered Potts to exit the car. Potts complied, and James was able to see that a firearm was protruding from under Potts’s seat.

James examined the firearm, handcuffed Potts, and sat him down on the street curb. James then asked Potts whether the gun belonged to him, but Potts did not respond. A search was conducted of the car, which yielded two additional firearms and some ammunition. Potts was then arrested.

(emphasis added). "At trial, the prosecution elicited testimony from James regarding Potts’s silence after being asked who owned the pistol." Potts objected to the testimony as a Fifth Amendment violation. The court did not rule on the objection, but suggested that it could instruct the jury that Potts had no obligation to answer the officer's question and that it's not against the law to do so. Potts agreed to the instruction, which the court then gave. "Potts did not reassert his objection to the testimony, object to the instruction, or move for a mistrial." When the prosecutor brought up Potts' silence again in closing argument, "Potts objected, not on any Fifth Amendment ground but on the ground that the prosecution was attempting to shift the burden of proof." The jury found Potts guilty.
 
On appeal, Potts argued first "that the government violated his Fifth Amendment right against self-incrimination by referencing, during trial, his silence in response to police questioning[.]" The court reviewed for plain error, because an objection alone was not sufficient to preserve the issue.

In Salinas, 480 F.3d at 755, we held that plain-error review was appropriate for a Fifth Amendment claim even though defense counsel “timely objected to each of the prosecutor’s references to [the defendant’s] post-arrest silence,” because “the trial court sustained all of those objections, and the trial court’s instructions to the jury made it clear that the jury was not to consider any of the challenged remarks.” Furthermore, we remarked that the defense “never took exception to the district court’s handling of his objections and, significantly, . . . never requested that the district court declare a mistrial.” Id. at 755-56. Plain error review was appropriate, because the defendant “effectively received all of the relief that he requested from the district court.” Id. at 756.

Salinas is not directly controlling, because the court did not explicitly sustain Potts’s objections, but the principles of Salinas inform us. As with the defendant in Salinas, Potts never raised any concerns with how the district court chose to handle his objection, and Potts explicitly agreed to the court’s proffered curative statement.

(emphasis added). Potts argued that the district court had implicitly overruled his objection, but the court of appeals didn't buy it:

Potts objected to testimony regarding his silence. The district court then offered a curative instruction, which Potts accepted. By accepting the instruction, Potts failed to obtain a definitive ruling on his objection—there was no implicit overruling, but rather no ruling at all. Following that failure to obtain a ruling, Potts accepted the court’s curative instruction without objection, thus failing to preserve error.

And that was a problem. Potts couldn't satisfy the second prong of plain-error review—that any error be clear or obvious— because the Fifth Circuit "has yet to address conclusively whether the use of pre-Miranda silence as substantive evidence of guilt is a Fifth Amendment violation."
 
On to Potts' next argument, the travelling gun one:

Potts contends that the government was required to prove, but did not, that he knew the firearm had traveled in interstate commerce. Potts was convicted pursuant to 18 U.S.C. § 922(g)(1)and sentenced pursuant to 18 U.S.C. § 924(a)(2). He argues that the word “knowingly” in § 924(a)(2) requires the government to prove that every element in § 922(g)(1), including that the firearm had traveled in interstate commerce, was known by the defendant.

That argument, however, is foreclosed by United States v. Rose, 587 F.3d 695 (5th Cir. 2009). There, the defendant raised the same argument as Potts does here, but we rejected it because the defendant had not been sentenced under § 924(a)(2). Id. at 705-06. Rather, he was sentenced under § 924(e)(1), which does not contain a “knowingly” requirement. We went on, however, to state that “[e]ven assuming arguendo that the ‘knowingly’ requirement in § 924(a)(2) applied throughout that section, there would be no corresponding impact on the elements of a crime listed in § 922(g)(1).” Id. at 706 n.9. That statement in Rose was not mere dictum; rather, it was an alternate holding that carries the force of precedent. Thus, Potts’s claim fails.