                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0851n.06
                            Filed: December 14, 2007

                                                06-3731

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                   )
                                                            )         ON APPEAL FROM THE
        Plaintiff-Appellee,                                 )         UNITED STATES DISTRICT
                                                            )         COURT FOR THE NORTHERN
v.                                                          )         DISTRICT OF OHIO
                                                            )
ARTHUR LEE BILLMAN, JR.,                                    )                             OPINION
                                                            )
        Defendant-Appellant.                                )




BEFORE:         BATCHELDER, COLE and GRIFFIN, Circuit Judges.

        R. GUY COLE, JR., Circuit Judge. Defendant-Appellant Arthur Lee Billman, Jr.

(“Billman”) appeals his jury conviction for being a felon in possession of a firearm in or affecting

interstate commerce on or about September 24, 2003, in violation of Title 18, Section 922(g)(1) of

the United States Code. Billman presents the following issues on appeal: 1) a challenge to the

district court’s denial of his pretrial motion to suppress evidence obtained during two searches of

Billman’s house; 2) a claim that the evidence presented was insufficient for conviction; 3) a claim

of prosecutorial misconduct; and 4) a claim that cumulative errors resulted in the denial of a fair trial.

        For the reasons set forth below, we AFFIRM.
06-3731
United States v. Billman



                                       I. BACKGROUND

A. Facts

       1.      September 16 Search

       On September 16, 2003, Billman’s son Jon called 911 to report an armed robbery at

Billman’s home. Billman and his live-in girlfriend, Eugenia Berring, resided at 2192 Brownlee

Avenue in Canton, Ohio. Based on the description provided by Jon, the police detained Robbie

Umbles as he was walking in a nearby neighborhood. Police escorted Billman to the site where

Umbles was being detained, and based on a positive identification by Billman, took Umbles to the

police station. Billman accompanied the officers to the station, where he and Umbles both entered

statements regarding the incident. Umbles claimed that he was purchasing marijuana from Billman

when he instead stole the drugs at gunpoint; Umbles also informed police that Billman’s basement

housed an operation to grow marijuana. Billman claimed that he was purchasing marijuana from

Umbles when Umbles robbed Billman at gunpoint. No charges were filed against Billman and

following the entry of the voluntary statement, officers offered to drive him home. Billman accepted

the ride, but requested to be dropped off at an auto repair store instead of home.

       During the time that the officers were interviewing Billman, Canton Police Department

Detective Joseph Mongold inquired at the Canton Prosecutor’s Office as to whether the information

provided by Umbles combined with historical complaints about a marijuana operation at the

Brownlee residence were sufficient to allow the officers to obtain a search warrant for the home.



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The prosecutor answered in the negative and suggested that the detectives try to obtain more

information before filing for a warrant.

       Mongold and Officer John Clark proceeded to the Brownlee home to conduct a visual

inspection of the premises and to determine if a K-9 drug-detection dog would alert to the presence

of drugs. When they arrived, the officers found that Berring was at home. Berring granted the

officers permission to enter the yard and search the exterior of the home. This search turned up no

information that would support a search warrant for the premises.

       Mongold also requested Berring’s permission to search the inside of the home. Berring

stated that the officers could search the residence only if they had a search warrant. Sergeant Victor

George, an officer whom Berring knew and trusted, was called on a cellular phone by Mongold and

spoke with both Mongold and Berring. At this point, the testimony of Mongold and Berring

diverges. Mongold states that following the conversation with George, Berring assented to the

search. Berring states that while she did sign a consent-to-search form following the arrival of

George, she did so based on the understanding that officers were in the process of obtaining a search

warrant.

       During the search of the home, the drug-detection dog alerted to the presence of drug residue

on a grow light in the basement and a locked safe in the garage. The officers requested that Berring

open the safe, which she eventually did in the presence of George. Berring states that she only

opened the safe because Mongold threatened to obtain a search warrant, take the safe downtown, and

have it cut open. Berring then stated that the items in the safe belonged to her and Billman’s father,



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United States v. Billman

Arthur Billman Sr., who lived across the street. George did not seize any of the property in the safe,

but he observed multiple firearms and other items.




       2.      September 24 Search

       At some point on September 24, George was directed by the Canton Police Chief to proceed

to the City Prosecutor’s Office with Sergeant John Dittmore to obtain a search warrant. Instead,

George proceeded to the office with Detective Daniel Heaton. At or around this time, Patrolman

Bruce Lawver, who was providing surveillance on the Brownlee Avenue home, contacted Dittmore

to inform him that a truck was leaving the home. Dittmore then asked Clark to effectuate a traffic

stop so that the officers could continue the investigation.

       Clark directed Berring, the driver of the truck, to stop and approached her vehicle, informing

her that Dittmore wanted to speak with her. Berring claims that Clark told her she could not leave,

and that she then waited ten minutes for Dittmore to arrive. Dittmore and Lieutenant Ronald Shank

arrived in an unmarked car, accompanied by two marked cars, at which time Clark moved his cruiser

in front of and facing Berring’s truck, but not blocking it in. Dittmore informed Berring that the

officers were doing a follow-up investigation regarding the weapons in the safe and that the police

wanted access to the weapons, but that they did not have a warrant.

       Berring contends that she refused consent absent a warrant, and that at some point Dittmore

angrily waived a piece of paper and stated “here is your warrant. Now let’s go back to the house.”

(Joint Appendix (“JA”) 488.) Berring claims that she believed the paper to be a warrant. Dittmore

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United States v. Billman

and the other officers present deny that Dittmore made any statements of this sort. Shank and

Officer Ronald Broadwater then spoke with Berring while Dittmore took a phone call. During this

conversation, the officers state that Berring gave consent to a search of the safe. Berring then drove

back to her home and the officers followed behind.

       Upon arriving at her home, Berring opened the garage door from the outside and entered the

garage, and then opened the safe. The officers asked Berring to step away from the safe, which

contained visible firearms, until Agent Charles Turner arrived with a consent-to-search form.

Officers state that during the time they waited, Berring was calm and chatted about hunting,

volunteering to show the officers her trophy room and stuffed animals.

       Turner claimed that Berring seemed calm when he arrived at the house. Turner, Broadwater,

and Berring sat at a dining table while Turner explained the consent form. Turner asked if Berring

was literate, to which she answered in the affirmative. Turner read the form out loud and asked

Berring if she understood it. Berring stated that she understood the form, and limited the scope of

her consent to the safe in the garage, asking Turner to change the writing on the form to reflect the

limitation. Turner indicated the limitation on the form and Berring signed it, at which point officers

proceeded to collect the evidence from the safe.

       The officers seized 26 guns, Billman’s expired driver’s license, an invoice dated after

Billman’s felony conviction and made out to Billman for a gun part, as well as other items. During

this time, Berring allegedly described to the officers which guns were hers and which were

Billman’s.

       3.      September 25 Search Warrant and Search

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United States v. Billman

       Officers obtained a search warrant on September 25 and executed the search on the same day.

Billman objected to the validity of the warrant based on the supporting affidavit. The Government

did not concede that the warrant was invalid, but stipulated that it would not introduce any evidence

obtained from this search during the trial.

B. Procedural History

       Billman was indicted on November 16, 2004. On February 2, 2005, a superseding indictment

was filed, accusing Billman of unlawful possession of 25 firearms on or about September 24, 2003.

Prior to trial, Billman filed a motion to suppress the evidence obtained during the September 16, 24,

and 25 searches. The district court conducted a hearing on these motions and denied the motions

with respect to the September 16 and 24 searches. Billman proceeded to trial pro se with the

assistance of two standby counsel from the Federal Public Defender’s Office.

       Over the course of the trial, the Government presented evidence that each of the guns had

been manufactured in another state. During the direct examination of the Government’s expert, the

prosecution specifically asked the expert about the gun which the jury ultimately found that Billman

unlawfully possessed, referring to it both as Exhibit 12 and as a Revelation 410 shotgun. The expert

testified that the gun was manufactured in Connecticut.

       Billman presented evidence that the gun was housed in a safe to which he did not have

access, that the safe and guns inside it belonged to Berring and Billman’s father, and that the couple

had signed an agreement prior to the search demonstrating the items in the safe belonged to Berring

and not Billman. The Government presented evidence that a receipt for a gun part made out to

Billman was in the safe and that a gun that Billman had possessed at one time was in the safe as well.

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United States v. Billman

One of the Government’s agents testified that Berring had informed him that Billman had a key to

the safe as well.

       Billman and the Government stipulated that Exhibit 12, the 410-gauge shotgun, belonged to

Nicholas Berring, Billman’s 10-year-old son.1         Both sides presented evidence that Billman

accompanied members of his family on hunts and that Ohio law required adult supervision while

minors were hunting. The Government produced a May 2004 photograph of Billman and three of

his children in hunting gear, including Nicholas, who was holding a shotgun.

       On January 24, 2006, the jury found Billman guilty of possessing Exhibit 12, the Revelation

410-gauge shotgun, model 330A, in violation of 18 U.S.C. § 922(g)(1). On January 31, 2006,

Billman filed a motion for judgment of acquittal, pursuant to Fed. R. Crim. P. 29, and a motion for

a new trial, pursuant to Fed. R. Crim. P. 33. In addressing Billman’s sufficiency-of-the-evidence

claim, the district court ruled that the jury’s verdict was based on sufficient evidence and was thus

not unreasonable.

                                      II. Motion to Suppress

       Billman argues that the district court erred in finding that Berring’s consent to search was

voluntary on both September 16 and 24. When reviewing a district court’s ruling on a motion to

suppress, this Court reviews the district court’s factual findings for clear error and the conclusions




       1
         The superseding indictment and the district judge at one point referred to the gun as a
Remington 410 gauge shotgun, while the verdict form and all other trial references are to a
Revelation 410 gauge shotgun. The at-trial identification by Billman and the Government’s witness
is sufficient to show that the court was at all times referencing Exhibit 12.

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United States v. Billman

of law de novo. United States v. Richardson, 385 F.3d 625, 629 (6th Cir. 2004) (citations omitted).



        A warrantless entry and search of a home is valid under the Fourth Amendment “when police

obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority

over the area in common with a co-occupant who later objects to the use of evidence so obtained.”

Georgia v. Randolph, 547 U.S. 103, 106 (2006) (citations omitted). Consent “that is the product of

official intimidation or harassment is not consent at all.” Florida v. Bostick, 501 U.S. 429, 438

(1991). Further, “credibility is a key issue” in consent cases and this court “accord[s] considerable

deference to the credibility findings of the trial court.” United States v. Cooke, 915 F.2d 250, 252

(6th Cir. 1990).

        The Government bears the burden of demonstrating “that the consent was in fact voluntarily

given, and not the result of duress or coercion, express or implied.” Schneckloth v. Bustamonte, 412

U.S. 218, 248 (1973). The Schneckloth Court continued, stating: “Voluntariness is a question of fact

to be determined from all the circumstances.” Id. at 248-49. The “‘district court’s findings with

regard to voluntariness [of consent to search] will not be reversed unless clearly erroneous.’” United

States v. Salvo, 133 F.3d 943 (6th Cir. 1998) (quoting United States v. Taylor, 956 F.2d 572, 777

(6th Cir. 1992) (alteration in original).

        In determining that the September 16 consent was voluntary, the district court summarized

the evidence before it and detailed the reasons that the consent was valid:

        Miss Berring’s consent was voluntary and freely given. I point out that this is
        consistent with her testimony under oath at the Grand Jury, and while she testified


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United States v. Billman

       differently in this courtroom, her testimony in this courtroom was simply not
       credible.

       First, Sergeant George, who obviously was friendly with Miss Berring, and who was
       there at the time and was the one who obtained the consent, testified that she did
       voluntarily and freely consent.

       Second, as I said, she had previously testified under oath that she did consent.

       Third, I watched her demeanor on the stand and did not find her to be credible.

       She cried on cue, she changed the nature of her testimony more than once. It was not
       internally consistent. And the Court finds that her ability, her effort to retract from
       her prior sworn testimony under oath before the Grand Jury was unavailing and
       unconvincing.

(JA 509-512.) The district court’s credibility determination is given deference by this Court, and in

any event is supported by the evidence. The district court’s determination that the consent was

knowing and voluntary is a factual determination that is not clearly erroneous and is supported by

the evidence.

       For the September 24 search, the district court once again summarized the evidence, made

a reasoned decision based on the evidence, and accounted for all of defendant’s arguments against

finding consent:

       The other officers have testified that there were no raised voices, there was nothing
       untoward, that no one ever placed a hand on Miss Berring, and that she was not
       intimidated. The other officers say that she was asked to go back to the home and
       that she did do so.

       ....

       Once the [consent to search] form did arrive, the Court finds that Miss Berring did
       execute it. Again, she testified under oath that she did not execute it. She testified
       to that effect here in the suppression hearing. But that testimony is inconsistent with
       her sworn testimony before the Grand Jury.

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       In addition the Court afforded the defendant the opportunity to hire a handwriting
       specialist. The Court paid for the services of a handwriting specialist and no
       testimony was presented . . .

       So the Court finds that ultimately, Miss Berring’s decision to return home, to open
       the safe, and to allow a subsequent search of the safe, was also a voluntary decision
       to consent to that search.

(JA 514-17.) Once again, the district court’s factual findings are not clearly erroneous and are

supported by the evidence.

                                 III. Sufficiency of the Evidence

       A motion for judgment of acquittal pursuant to Rule 29 due to insufficient evidence is

reviewed under the same standard as an insufficient evidence claim. United States v. Bowker, 372

F.3d 365, 387-88 (6th Cir. 2004). Following a conviction, a defendant “bears a very heavy burden

in his sufficiency of the evidence challenge to his conviction.” United States v. Davis, 397 F.3d 340,

344 (6th Cir. 2005) (quotation omitted). For this Court,

       In reviewing a district court’s denial of a motion for judgment of acquittal on a claim
       of insufficient evidence, “the relevant question is whether after viewing the evidence
       in the light most favorable to the prosecution, any rational trier of fact could have
       found the essential elements of the crime beyond a reasonable doubt.”

United States v. Lloyd, 10 F.3d 1197, 1210 (6th Cir. 1993) (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)).

       The parties stipulated that Nicholas owned the 410-gauge shotgun, and there was no evidence

that Billman had actual possession of it. Thus, it must be that the jury found Billman was in

constructive possession of the gun.




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       In United States v. Grubbs, No. 04-5403, 2007 U.S. App. LEXIS 24252, (6th Cir. 2007), this

Court summarized the circuit’s constructive possession law:

       “Constructive possession exists when a person does not have possession but instead
       knowingly has the power and the intention at a given time to exercise dominion and
       control over an object, either directly or through others.” [United States v. Craven,
       478 F.2d 1329, 1333 (6th Cir. 1973).] In contrast to a situation where the defendant
       has physical contact with a firearm . . . constructive possession may be proven if the
       defendant merely had “dominion over the premises where the firearm is located.”
       United States v. Gardner, 488 F.3d 700, 713 (6th Cir. 2007) (internal quotations and
       citations omitted).

       However, it is without question that “‘[p]resence alone’ near a gun . . . does not
       ‘show the requisite knowledge, power, or intention to exercise control over’ the gun
       to prove constructive possession.” United States v. Arnold, 486 F.3d 177, 183 (6th
       Cir. 2007) (quoting United States v. Birmley, 529 F.2d 103, 107-08 (6th Cir. 1976)).
       “[O]ther incriminating evidence, coupled with presence” is needed to “tip the scale
       in favor of sufficiency.” Id.

Id. at *11-12.

       In this case, the evidence supporting constructive possession includes the undisputed

evidence that Billman’s son owned the 410-gauge shotgun, the gun was stored in a safe in Billman’s

garage, and that Billman was at times in close proximity to his ten-year-old son holding a shotgun.

Given the testimony that adults must supervise minors when hunting, Billman’s testimony that he

accompanied his children during hunts, and the agent’s testimony that Berring stated Billman had

possession of a key to the safe, the district court’s finding that there was sufficient evidence of

constructive possession was not clearly erroneous. The jury’s verdict was also supported by the

evidence.




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                                  IV. Prosecutorial Misconduct

       Billman complains that the prosecutor’s conduct at trial resulted in reversible error. While

the prosecutor made some improper statements during the trial, the statements do not warrant a new

trial when reviewed either individually or as a whole.

       The question of whether a prosecutor’s conduct amounts to prosecutorial misconduct, and

whether it rendered the trial fundamentally unfair, are mixed questions of law and fact that are

reviewed de novo. See United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999). When there is

no objection at trial, the alleged improper conduct is reviewed for plain error. United States v.

Carroll, 26 F.3d 1380, 1383 (6th Cir. 1994). Alleged conduct that is subject to an objection at trial

is reviewed de novo. United States v. Owens, 426 F.3d 800, 806 (6th Cir. 2005). In conducting our

review, we employ a two-step analysis, determining first whether the prosecutor’s conduct was

improper and second whether it was flagrant. United States v. Tarwater, 308 F.3d 494, 511 (6th Cir.

2002). “Improper remarks that are flagrant amount to per se reversible error; improper errors that

are not flagrant may amount to reversible error in certain circumstances.” United States v. Hargrove,

416 F.3d 486, 493 (6th Cir. 2005). In determining whether a statement was flagrant, the Court

considers:

       (1) whether the remarks tended to mislead the jury or to prejudice the accused,
       [including whether the trial judge gave an appropriate cautionary instruction to the
       jury]; (2) whether they were isolated or extensive, (3) whether they were deliberately
       or accidentally placed before the jury; and (4) the strength of the evidence against the
       accused.

United States v. Abboud, 438 F.3d 554, 585 (6th Cir. 2006) (alteration in original) (citations

omitted). If the statement was improper but not flagrant, reversal is only appropriate when “(1) proof

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of defendant’s guilt is not overwhelming, and (2) defense counsel objected, and (3) the trial court

failed to cure the error with an admonishment to the jury.” Carroll, 26 F.3d at 1385-86 (citing United

States v. Bess, 593, F.2d 749, 757 (6th Cir. 1979) (emphasis in original).

A. The Instances Complained of are Improper.

       Billman complains of three instances of misconduct. First, the prosecutor offered Exhibit

67 into evidence, despite its reference to Billman’s participation in a drug-treatment program, a

subject which the district court previously determined could not be referenced at trial. Second, the

prosecutor’s questioning of Billman’s parole officer elicited testimony about Billman’s parole

violations, a subject that the district court had also determined was inadmissible. Third, the

prosecutor’s closing arguments falsely asserted that Exhibit 50 was a picture of a “crime as it

occurred,” where Exhibit 50 was the photograph of Billman standing near his son Nicholas, in

hunting gear, while Nicholas held a shotgun.             Although the prosecutor’s conduct in the

aforementioned instances was improper, it was not flagrant and does not require a new trial.

B. The Misconduct was Not Flagrant.

       1.      Exhibit 67.

       During its cross-examination of Billman, the Government produced a parole condition form

signed by Billman. Billman was unable to make out the signature on the screen and requested that

the Government enlarge the image, which the Government then did. The form contained a reference

to psychological treatment and drug testing. Billman requested to approach the bench and the

following side bar occurred on the record:



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United States v. Billman

               MR. BILLMAN: You have banned Mr. Corts [the prosecutor] not to
               bring up drugs and counseling, and he brought it up. They all just
               looked at it.
               MR. CORTS: That’s the - -
               MR BILLMAN: Right there it is. Drug counseling, and you just did
               it.
               MR. CORTS: That’s over here.
               ....
               MR. CORTS: The only reason I would be using these two things is
               he signed, and then when he was released, that has that condition in
               there that he can never own or purchase a weapon. I’ll put those up
               there.
               MR. BILLMAN: They already seen that now.
               MR. CORTS: They didn’t see it.
               MR. BILLMAN: I seen it.
               THE COURT: Well - -
               MS. CRAMER: They only saw the enlarged part.
               ...
               THE COURT: [A]t this point I am getting so nervous about the fact
               that you have gone so far down this road that I already know I have
               to give the jury a limiting instruction, and if we go any farther down
               that road, I’m going to have to tell them to disregard it all.
                       So if you want to say, just so there’s no debate and confusion,
               “When you were on parole, you understood that you couldn’t own or
               possess a weapon, right?” If you want to ask him that question, you
               can, but don’t use this document.

(JA 645-49.)

       Thus, it appears that the improper portion of Exhibit 67 was shown to the jury by accident.

In addition, the district court noted that the jury was unlikely to have seen the reference to drug

counseling because it was in small type, the prosecutor focused the screen on Billman’s signature

quickly, and no reference was made to the such treatment during the examination. After Billman

objected to the use of the document, the district court instructed the Government to avoid using the

document and it was not presented before the jury again. Although no curative instruction was given


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United States v. Billman

to the jury, the display was brief and the focus was on a different portion of the document. Thus, the

conduct was not flagrant and does not render the trial fundamentally unfair.

       2.      Parole Officer Slater’s Testimony.

       After obtaining initial background information from Officer David Slater about his duties,

the prosecution proceeded to pursue questioning regarding Billman’s period of parole:

               Q.      Can you tell us about any incidents at that time?
               A.      The time that I’m referring to is when he was returned to
               prison as a violator.
               Q.      And what was that for?
               A.      There were numerous violations.
                       MR. BILLMAN: Object.
                       THE COURT: Sustained. The jury will disregard that
               comment. The [G]overnment was instructed that that was
               inappropriate evidence.

(JA 545.) Slater then testified that there had been an incident with a handgun that was found in

Billman’s bedroom. The prosecutor continued:

               Q.      And do you know if it was loaded or not?
               A.      Yes, it was. Eight in the clip and one in the chamber.
                       MR. BILLMAN: Objection.
                       THE COURT: Sustained. Approach.
               (At side bar on the record.)
                       THE COURT: I don’t know if you are trying to invite a
               mistrial, but you are getting pretty close. You are certainly getting my
               anger. I told you not to do this. I told you you could establish the
               continued ownership. There’s no reason to even address the question
               of whether it was loaded, and I told you to stay away from violations.
                       MS. CRAMER: I was shocked that he answered violations.
                       THE COURT: Did you talk to him about the limitations.
                       MS. CRAMER: Yes, Judge, at least three times. At least
               three times, Your Honor.
                       THE COURT: Why did you ask him if it was loaded? Of what
               relevance is that other than to try to prejudice the jury?


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(JA 546.)

        This does not rise to the level of flagrant misconduct. While the district court expressed its

strong disapproval to the Government, the district court also issued a curative instruction to the jury,

instructing them to disregard the questions because they were improper. This misconduct, followed

by a curative statement, is not flagrant and does not warrant a new trial. See United States v. Sales,

No. 05-2522, 2007 U.S. App. LEXIS 21869, * 19-20 (6th Cir. 2007) (finding that the prosecutor’s

statement regarding defendant’s prior felonies, while improper, were not flagrant when followed by

a curative instruction).

        3.      Prosecutor’s Closing Argument.

        During the Government’s closing argument, the prosecutor made comments that resulted in

the issuing of a curative statement by the district court. The Government displayed Exhibit 50, the

photograph of Billman and his children, and stated: “The significance of this picture is, with it, you

are getting to see the crime.” Later, the Government’s counsel stated: “So what you are looking at

in this photo is the defendant in possession of firearms. . . . The person in control is the person who

has always been in control, the defendant, Arthur Lee Billman, Jr.” (JA 659.) Billman objected and

the district court stated:

                Ladies and gentlemen, the [G]overnment just misspoke, seriously
                misspoke. Ms. Cramer represented that the photograph showed the
                crime occurring in this case.

                There’s no evidence at all that this photograph was taken on
                September 23, 2004 [sic]. There’s no indication that it was even
                close to that date. We have no idea when that photograph was taken
                . . . . [T]he statement that this shows a crime occurring is an incorrect


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               statement, and even Ms. Cramer admitted at side bar that that’s not
               what she meant to say.

               So its important that you understand that this is not evidence of any
               crime that’s at issue here.

(JA 660.)

       During the Government’s rebuttal during closing argument, Billman once again objected to

the Government’s argument:

               (MR. CORTS:) But, you know, a lot of times in these drug cases, we
               encounter - -
                       MR. THOMPSON: Objection
                       THE COURT: Sustained. Now you are going off into other
               circumstances. You need to wrap it up, Mr. Corts. This is supposed
               to be a brief rebuttal.
                       MR. CORTS: In some cases people who are committing
               crimes hide the fruits of those in lots of different places.
                       MR. THOMPSON: Objection.
                       THE COURT: Sustained. Mr. Courts, I sustained the
               objection to that before. Do not speculate about what happened in
               other circumstances, and ladies and gentlemen, you must ignore all
               such argument.

(JA 661-62.)

       Given the curative statements, and the instruction to the jury to disregard the prosecutor’s

remark, any prejudice from the prosecutor’s remarks were dissipated by the Court’s admonition.

       4.      The Statements Taken Together.

       Reviewing the statements taken as a whole, the prosecutor’s misconduct is not flagrant.

Under the first factor, “whether the remarks tended to mislead the jury or prejudice the accused

[including whether the trial judge gave an appropriate cautionary instruction to the jury]” Abboud,

438 F.3d at 584 (alteration in the original), the statements are not the type that would mislead the

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jury. Exhibit 67 was likely not even seen by the jury, and the remaining statements were addressed

clearly and directly by the district court. Further, while the statements may have been prejudicial, the

district court’s instruction to the jury dissipated any prejudice from the statements. As a result, the

first factor weighs against Billman.

        The second factor requires the Court to look at whether the improper remarks were isolated

or extensive. Id. The three instances complained of by Billman, spread over a multi-day trial, do not

rise to the level of extensive improper remarks. Accordingly, this factor weighs against Billman as

well.

        The third factor requires a review of whether the improper evidence and remarks were

“deliberately or accidentally placed before the jury.” Exhibit 67’s introduction appears to have been

an unintentional violation of the parties’ stipulation. While the prosecutor’s questioning of Slater

was obviously intentional, Slater was aware that he should avoid any testimony about prior

violations, making it appear that Slater’s response was not solicited by the prosecution and may have

been accidental. The statements regarding the Exhibit 50 photograph were intentional, but the

prosecutor at side-bar asserted that she did not intend to suggest that the photograph was evidence

of the crime. It thus appears that her statements were not deliberately placed before the jury.

        Lastly, the court examines the strength of the evidence against the defendant. In this case,

the evidence was not particularly strong. However, there was sufficient evidence supporting

Billman’s possession of the 410-gauge shotgun.

            IV. Cumulative Errors Resulting in a Denial of a Right to a Fair Trial



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06-3731
United States v. Billman

       This Court reviews the cumulative effect of errors made at trial de novo in order to determine

whether the errors created a trial that amounted to a denial of due process. Lundy v. Burson, 888 F.2d

467, 481 (6th Cir. 1989). Billman asserts that the denial of his suppression motion, the district

court’s ruling on his insufficient evidence claim, and the prosecutor’s misconduct constitute errors

that should result in a new trial. However, as addressed above, none of the district court rulings that

Billman complains of above are errors, and, as such, they do not impact Billman’s due process rights

and do not constitute grounds for reversal.

                                        V. CONCLUSION

       For the reasons stated above, this Court AFFIRMS the defendant’s conviction.



.




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