                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3964
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Linda Ray Gardner,                       *
                                         *
      Defendant - Appellee.              *
                                    ___________

                               Submitted: September 14, 2004
                                  Filed: February 4, 2005
                                   ___________

Before LOKEN, Chief Judge, BEAM and GRUENDER, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       A jury convicted Linda Ray Gardner of conspiring to distribute 500 grams or
more of methamphetamine in violation of 21 U.S.C. § 846. The district court granted
Gardner’s motion for a new trial, concluding that the prosecutor made an inadvertent
but nonetheless improper comment on Gardner’s Fifth Amendment right not to testify
by stating, during rebuttal closing argument, that “there is no evidence that refutes”
incriminating testimony by a government witness. The government appeals. We
have jurisdiction to review an order granting a new trial in a criminal case. See 18
U.S.C. § 3731. We conclude that the prosecutor’s statements were not improper and
therefore reverse.

                       I. The Governing Legal Principles.

       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.” Griffin v. State of California, 380 U.S. 609, 615 (1965). To
warrant a new trial on this ground, the defendant must demonstrate that a prosecutor’s
comment was both improper and prejudicial to the defendant’s substantial rights.
United States v. Moore, 129 F.3d 989, 993 (8th Cir. 1997), cert. denied, 523 U.S.
1067 (1998). The Supreme Court reviews de novo whether the prosecutor has
unconstitutionally commented on the defendant’s failure to testify. See United States
v. Robinson, 485 U.S. 25, 31-34 (1988); accord Pollard v. Delo, 28 F.3d 887, 889
(8th Cir.) (“how the prosecutor’s statements may be characterized is a mixed question
of law and fact, which we review under a de novo standard”), cert. denied, 513 U.S.
1003 (1994). The district court’s grant of a new trial is then reviewed for abuse of
discretion. See United States v. Glantz, 810 F.2d 316, 320 n.2 (1st Cir.), cert. denied,
482 U.S. 929 (1987).

       The government argues that the prosecutor’s comments during rebuttal
argument were neither improper nor prejudicial.1 We apply the rule in Griffin to both
direct and indirect comments on a defendant’s failure to testify. When the prosecutor
has neither directly commented on the defendant’s silence, nor demonstrated an intent


      1
        Gardner argues that the government waived the impropriety issue in the
district court when the prosecutor said during a hearing on the new trial motion,
“Your Honor, I agree that the comment was improper, and I apologize.” We disagree.
Because the court ruled that the statement was improper during trial, the post-trial
apology is best viewed as a bow to reality. The government then argued that the
statements were not improper in its subsequent post-hearing brief, and on appeal.

                                          -2-
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.” Herrin v. United States, 349 F.3d 544, 546 (8th Cir. 2003) (emphasis added),
cert. denied, 124 S.Ct. 2832 (2004). Comments must be evaluated in the context of
the entire closing arguments and the evidence introduced at trial. See United States
v. Smith, 266 F.3d 902, 906 (8th Cir. 2001).

                          II. The Evidence in Question.

       The government’s principal witness, Terry McGee, testified that he and
Gardner became partners in distributing methamphetamine in the Beebe, Arkansas
area north of Little Rock. McGee testified that Gardner came to his home late one
night in early March 1998 to ask if she could leave with McGee eight to ten pounds
of methamphetamine she had recently acquired from her Mexican suppliers in
California. McGee agreed, and Gardner asked him to separate one of the “best-
looking pounds” for her, to be retrieved later. McGee separated two pounds, putting
one in a bag he marked “Linda,” and the other in a bag he marked “Terry,” for
himself. A few days later, police executed a search warrant on McGee’s home and
seized the methamphetamine that McGee had not yet sold, including the two bags
marked “Linda” and “Terry.” These bags were admitted into evidence during
Gardner’s trial. Though McGee was extensively cross-examined, he was asked very
few questions about the one pound he put in a bag marked “Linda.”

       McGee testified that, while Gardner was at his home delivering the load of
methamphetamine, he called Barbara Shumake, one of his customers who “had been
asking me about getting possibly five pounds or more.” Shumake expressed interest
in the new load and was in McGee’s home inspecting the methamphetamine when the
warrant search took place. Neither side called Ms. Shumake as a witness.




                                         -3-
      McGee further testified that Gardner sought him out when he was released on
bond three days after the warrant search. Gardner told McGee she had come to his
house while the police were there but “just kept on going” down the road. Gardner
said she owed her Mexican suppliers for the methamphetamine she had left with
McGee, and they wanted evidence it had been seized. A day or two later, McGee met
with Gardner and two of the Mexicans, who said that Gardner owed them $120,000.
The group discussed how they might recoup their losses through further drug sales.

       Another important government witness, Ruby Eastep, testified that Gardner
came to her trailer and said she had left a load of methamphetamine with McGee to
sell, but when she went back to collect money from McGee, “the place was
surrounded and the police were there.” Eastep described Gardner as “very upset”
“because she owed her Mexicans in California quite a bit of money.” Eastep was not
cross-examined about this part of her extensive testimony. Another government
witness, Debby Stacy, whose boyfriend had drug dealings with McGee, testified that
Gardner once said she went to McGee’s house, saw several police cars, and left.
Stacy was not cross-examined about this incident.

      Government witness Linda Taylor testified that she used methamphetamine
with Linda Gardner, and each bought an “eightball” from the other on at least one
occasion. There was no cross-examination directed to whether Ms. Taylor might be
the “Linda” whose name appeared on the one-pound bag marked by Terry McGee.

       The defense called nine witnesses, presenting evidence that Gardner’s lifestyle
did not match that of a big-time drug dealer, and that she was a responsible mother
of three, a good employee, and extremely poor during the relevant time period. No
defense witness addressed McGee’s testimony regarding the March 1998 transaction
or the warrant search of his home. Gardner did not testify.




                                         -4-
    III. Closing Arguments, Jury Instructions, and Grant of a New Trial.

       Prior to closing arguments, the district court gave its final instructions to the
jury, which included the following: “There is no burden upon the defendant to prove
that she is innocent. Accordingly, the fact that the defendant did not testify must not
be considered by you in any way, or even discussed, in arriving at your verdict.”

       During closing argument, defense counsel stated: “The biggest problem in this
case is, there has never been one bit of evidence that has ever been directly linked to
Linda Gardner. And think about this: Linda Taylor, Ruby Eastep, Terry McGee. . . .
Every one of them . . . has gotten busted at some point, even if it’s with a half a gram
of meth. . . . But yet Linda Gardner has been importing and distributing multi pounds
of meth and has never been caught with so much as a gram on her? What’s the
chances of that, if she was really doing it?” The prosecutor then offered the following
response during rebuttal, pointing to the bag marked “Linda”:

            Now, Mr. Wyatt said that there was no dope that was directly
      linked to Ms. Gardner. Well, sure there is. It’s right here: Linda.

            You haven’t heard any evidence from the defense whatsoever --
      and I want to emphasize, it is our burden of proof to show that she
      committed the crime that she is charged, but there is nothing, there is no
      evidence that refutes the testimony that Terry McGee gave that he
      separated out two pounds of methamphetamine--

            [DEFENSE COUNSEL]: Your Honor, I object and ask to
      approach [the bench].

                                  *   *    *    *   *

            THE COURT: I’m inclined to think it’s improper. There was
      only one person that could refute it, which is the defendant.



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The court denied Gardner’s mistrial motion but gave the following cautionary
instruction to the jury: “Ladies and gentlemen, I’m instructing you to disregard the
last statement of the prosecution about no refutation of certain evidence. Disregard
it.” After over four hours of deliberation, the jury found Gardner guilty of conspiracy
to distribute methamphetamine. The defense moved for a new trial, arguing (among
other grounds not at issue on appeal) that the prosecutor had improperly commented
on the defendant’s failure to testify.

       After post-trial argument and briefing, the district court granted Gardner a new
trial. The court explained that, while the prosecutor’s comment was inadvertent, it
“definitely ‘sounded like’ a comment on the defendant’s failure to testify -- not like
an argument that the defense failed to present evidence in support of its theory of the
case.” The court concluded that the argument was prejudicial, despite the court’s
cautionary instruction, because the instruction did not encompass all of the
prosecutor’s improper statements.

                                    III. Discussion.

       At trial, the district court sustained defense counsel’s objection and instructed
the jury to disregard the prosecutor’s “last statement.” But in its written post-trial
order granting Gardner’s motion for new trial, the court expanded that ruling. “It was
not just ‘the’ last statement, but the last three or four statements that violated the rule
against commenting on the defendant’s decision to be silent.” The expanded ruling
was error. The “last three or four statements” included the prosecutor pointing at the
bag of methamphetamine marked “Linda” and saying, “Now, Mr. Wyatt said that
there was no dope that was directly linked to Ms. Gardner. Well, sure there is. It’s
right here: Linda.” That was proper rebuttal to defense counsel’s closing argument.
By no stretch of the imagination could this rebuttal reasonably be construed as a
comment on Gardner’s decision not to testify.



                                           -6-
       The prosecutor’s next statement was, “You haven’t heard any evidence from
the defense whatsoever,” to which the prosecutor added a postscript emphasizing the
government’s burden of proof. This comment was not improper. In general, “the
government may comment on the failure of the defense, as opposed to the defendant,
to counter or explain the evidence [unless] the jury would naturally and necessarily
take it to be a comment on the failure of the accused to testify.” United States v.
Guzman, 781 F.2d 428, 432 (5th Cir.) (quotation omitted), cert. denied, 475 U.S.
1143 (1986); see United States v. Johnson, 713 F.2d 633, 651 (11th Cir. 1983), cert.
denied, 465 U.S. 1081 (1984). Here, the jury heard testimony from nine defense
witnesses, but none was questioned about the bag of methamphetamine marked
“Linda.” Thus, there is no basis for inferring that the jury would naturally and
necessarily construe a reference to no evidence “from the defense” as an indirect
comment on Gardner’s failure to testify.

       That leaves “the last” and most controversial comment: “there is no evidence
that refutes the testimony that Terry McGee gave that he separated out two pounds
of methamphetamine.” Although a comment in closing argument that the
government’s evidence was unrefuted, uncontradicted, or unexplained may constitute
an indirect comment on the defendant’s failure to testify, the issue requires an
analysis of the trial evidence and the context in which the comment was made. For
example, in Lockett v. Ohio, 438 U.S. 586, 595 (1978), the Supreme Court concluded
that the prosecutor’s repeated references to the State’s evidence as “unrefuted” and
“uncontradicted” were not improper because, during trial, defense counsel had
promised the jury that defendant would be the “next witness,” but she did not testify.
We have held in more than one case that a prosecutor did not improperly comment
on the defendant’s failure to testify by asserting in closing argument that the
government’s evidence was unrefuted or uncontradicted, particularly when the
comment was a logical rebuttal to the defendant’s closing argument. See Smith, 266
F.3d at 906; Moore, 129 F.3d at 993; United States v. Emmert, 9 F.3d 699, 702-03
(8th Cir. 1993), cert. denied, 513 U.S. 829 (1994). Such a remark is improper only

                                         -7-
when the jury would naturally and necessarily take it as a comment on the defendant’s
failure to testify because no one other than the defendant could have refuted the
evidence in question. United States v. Triplett, 195 F.3d 990, 995 (8th Cir. 1999),
cert. denied, 529 U.S. 1094 (2000). In this regard, “the question is not whether the
jury possibly or even probably would view the challenged remark in this manner, but
whether the jury necessarily would have done so.” United States v. Grosz, 76 F.3d
1318, 1326 (5th Cir.) (emphasis in original; quotation omitted), cert. denied, 519 U.S.
862 (1996).

       The district court properly focused on this question at trial when it sustained
defense counsel’s objection because, in its view, “There was only one person that
could refute [the last statement], which is the defendant.” But in so ruling, the court
took too narrow a view of both the comment and the evidence, thereby violating the
principle that “a court should not lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning or that a jury, sitting through lengthy
exhortation, will draw that meaning from the plethora of less damaging
interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974).

        In context, this last comment was clearly intended to remind the jury of
McGee’s explanation of how the bag of methamphetamine came to be marked,
“Linda.” Because no one else was there when Gardner brought a large quantity of
methamphetamine to McGee’s home late at night, one interpretation of the comment
is that it improperly called attention to the fact that Gardner did not take the stand to
deny the meeting took place. But the evidence the prosecutor pointed to was the bag
marked “Linda.” The critical question was whether that physical evidence belonged
to Linda Gardner, as McGee testified. There were many ways the defense could have
refuted this testimony, other than by calling Gardner to the stand to deny it.

      -- For example, McGee testified that he called Barbara Shumake that night, she
expressed an interest in buying a large quantity of methamphetamine, and she was

                                          -8-
present in McGee’s home when it was raided a few days later. Shumake might have
been called as a defense witness to refute McGee’s testimony that “Linda” marked on
the bag meant that the pound of methamphetamine belonged to or was being held for
Linda Gardner. The existence of other relevant witnesses “makes it unlikely that the
jury would have viewed the challenged comments as pointing to defendant[’s] silence
at trial rather than to the lack of evidentiary support for the defense theory.” Glantz,
810 F.2d at 323.

     -- Another way to refute McGee’s testimony would have been to lay a
foundation in the cross-examination of methamphetamine user Linda Taylor for the
argument that Ms. Taylor was the “Linda” referred to on the bag.

      -- Yet another way to refute would have been more focused cross-examination
of McGee concerning the bag marked Linda, and aggressive cross-examination of
Ruby Eastep and Debby Stacy on their testimony regarding Gardner’s conduct during
and after the police raid, which tended to corroborate this portion of McGee’s
testimony.

The defense pursued none of these strategies, relying instead on persuading the jury
that McGee (and Eastep) were, in general, not to be believed. In these circumstances,
we cannot agree with the district court that the prosecutor’s comment that the bag
marked “Linda” was unrefuted evidence of Gardner’s guilt would “naturally and
necessarily” be construed by the jury as a comment on her decision not to testify.

        There remains the question whether the district court abused its discretion in
granting Gardner a new trial. At trial, the district court sustained defense counsel’s
objection and instructed the jury to disregard the last statement about unrefuted
evidence. It was well within the court’s discretion to instruct the jury to disregard a
comment that came close to the lines drawn by Griffin and its progeny. But after
trial, the district court expanded that permissible though erroneous ruling to include

                                          -9-
additional comments that in our view were not even arguably improper rebuttal.
Then, dismissing the value of curative instructions as “mostly fiction,” the court
concluded that Gardner should be granted a new trial because of “my failure to give
a thorough instruction to disregard.” We presume the jury followed the court’s
instruction to disregard a comment by the prosecutor. See United States v. Flute, 363
F.3d 676, 678 (8th Cir. 2004). Likewise, we presume the jury followed the court’s
final instruction that Gardner’s decision not to testify “must not be considered by you
in any way, or even discussed, in arriving at your verdict.” The court’s disdain for
the value of cautionary or curative instructions is contrary to well-established law:
“The rule that juries are presumed to follow their instructions is a pragmatic one,
rooted less in the absolute certitude that the presumption is true than in the belief that
it represents a reasonable practical accommodation of the interests of the state and the
defendant in the criminal justice process.” Richardson v. Marsh, 481 U.S. 200, 211
(1987). In these circumstances, though we give substantial deference to a trial court’s
exercise of its discretion to grant a new trial, we conclude that the district court’s
ruling granting a new trial in this case had no valid basis in law or the trial record and
was therefore an abuse of its discretion.

       The order of the district court dated November 18, 2003, is reversed, and the
case is remanded for further proceedings not inconsistent with this opinion.
                       ______________________________




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