                                                                    [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT             U.S. COURT OF APPEALS
                      ________________________              ELEVENTH CIRCUIT
                                                                JULY 03, 2001
                                                             THOMAS K. KAHN
                             No. 00-12586                         CLERK
                       ________________________

                 D. C. Docket No. 99-00144-CR-1-001-RV


UNITED STATES OF AMERICA,


                                           Plaintiff-Appellee,


                                  versus



LARRY LEE MANASSA MILLER,


                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                      _________________________
                              (July 3, 2001)

Before BARKETT, HILL and KRAVITCH, Circuit Judges.
HILL, Circuit Judge:

      Larry Lee Manassa Miller was convicted of two counts of possession of a

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

of possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). He

timely filed this appeal.

                                          I.

      On January 2, 1999, Larry Lee Manassa Miller, a convicted felon, was

stopped by police officers for traffic violations. Miller was alone in the car, which

was registered in his name. During this stop, the police officers learned that

Miller’s driver’s license was suspended. The officers arrested Miller for driving

under a suspended license and impounded his car. During an inventory search of

the car, the officers discovered a loaded nine millimeter semiautomatic pistol under

the driver’s seat.

      On May 27, 1999, the same officers that arrested Miller in January observed

Miller driving alone in his car. Aware that there was an outstanding warrant for

Miller’s arrest on an unrelated misdemeanor offense, the officers again pulled

Miller over and arrested him. As before, the officers impounded Miller’s car and

performed an inventory search. This time the officers found a loaded .38-caliber




                                          2
revolver under the driver’s seat and an unloaded short-barreled shotgun and

ammunition in the trunk.

       The government’s case against Miller consisted primarily of the testimony

of the two investigating officers that they twice arrested Miller and each time

found a firearm in his car during the inventory search. During the testimony of the

first officer, the following exchange took place.

               Q:      And was he read his Miranda rights?
               A:      Yes he was. He was read his Miranda rights and invoked
                       his rights at the time.
               Q:      And therefore, he did not make a statement?
               A:      No, Sir. He was not asked any further questions in regards to
                       the weapons or what he was being charged with.

These questions drew no objection from defense counsel.1

       Later, during a direct examination of the second arresting officer, the

prosecutor repeated this line of questioning, as follows:

               Q:      And he was read his Miranda rights?
               A:      Yes, he was.
               Q:      And did he make a statement or did he decline to make a
                       statement?


       1
          In the absence of an objection at trial, we may review only for plain error. Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 730-32 (1993). We find plain error where (1)
there is an error; (2) the error is plain; (3) the error affects the defendant's substantial rights in
that it was prejudicial and not harmless; and (4) the error seriously affects the fairness, integrity
or public reputation of a judicial proceeding. Johnson v. United States, 520 U.S. 461,467(1997)
(“If all three conditions are met, an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings”).

                                                  3
At this point, before an answer was given, defense counsel objected to the question

and the district court sustained the objection. Neither a mistrial nor any curative

instruction was requested or given.

      Miller did not take the stand or present any evidence. In his closing

argument, Miller’s counsel argued that the government had failed to present any

evidence that Miller knew the guns were in his car. Miller was convicted on all

counts.

      On appeal, Miller argues that (1) the prosecutor’s questions concerning his

post-Miranda silence violated his right to due process, (2) the district court erred

when it denied his motions to sever the counts charging possession of a firearm by

a convicted felon from the remaining counts in the indictment, and (3) the

government failed to present sufficient evidence of, and the district court failed to

properly instruct the jury on, the mens rea element of the crime of possessing an

unregistered firearm. For the following reasons, we affirm Miller’s conviction.



                                          II.

A. The Alleged Doyle Violations.

      Since 1976, it has been well-settled that using the defendant’s silence at the

time of arrest and after receiving Miranda warnings in an effort to impeach him at

                                          4
trial violates the Due Process Clause and its guarantee against fundamental

unfairness. Doyle v. Ohio, 426 U.S. 610 (1976); United States v. Stubbs, 944 F.2d

828, 834 (11th Cir. 1991). The Supreme Court made crystal clear in Doyle that for

a prosecutor to call attention to the defendant’s silence after arrest when he has

been expressly warned that “anything he says can be used against him at trial”

would be fundamentally unfair. 426 U.S. at 618 (citing United States v. Hale, 422

U.S. 171, 182 (1975)) (“Surely Hale was not informed here that his silence, as well

as his words, could be used against him at trial”).

       We have not hesitated to reverse a conviction which was tainted by such an

improper comment on the defendant’s silence at arrest. United States v. Dodd, 111

F.3d 867, 870 (11th Cir. 1997). And yet, prosecutors continue to indulge

themselves in this way. It is a practice which should end and which we shall

continue to scrutinize with great care.2

       In this case, however, it is not necessary for us to decide whether these

questions were Doyle violations. Even if they were, we would conclude that they

were harmless error. A Doyle violation is harmless if the error had no “substantial

and injurious effect or influence in determining the jury’s verdict.” Brecht v.

       2
        In Greer v. Miller, 483 U.S. 756, 765 (1987), the Supreme Court observed that even if a
prosecutor’s question does not constitute a Doyle violation, “the fact remains that the prosecutor
attempted to violate the rule of Doyle by asking an improper question in the presence of the
jury.” Such prosecutorial misconduct may itself rise to the level of a due process violation. Id.

                                                5
Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)). For example, we have repeatedly held harmless a

prosecutor’s single reference to the defendant’s post-Miranda silence if it occurs

during a trial at which the government’s evidence was otherwise overwhelming.

United States v. Gabay, 923 F.2d 1536, 1541 (11th Cir. 1991); United States v.

Ruz-Salazar, 764 F.2d 1433, 1437 (11th Cir. 1985); Sullivan v. Alabama, 666 F.2d

478, 485 (11th Cir. 1982). This is especially so where the prosecutor makes no

further attempt to “highlight” the defendant’s exercise of Miranda rights either in

questioning other witnesses or during closing argument. See United States v.

Gonzalez, 921 F.2d 1530, 1549 (11th Cir. 1991).

      In this case, the questions at issue took only moments of the trial and one of

the questions was not answered by the witness. The prosecutor did not focus on or

emphasize the officers’ testimony or the fact of Miller’s silence at any point in the

trial, including closing arguments. Since Miller did not testify at trial, his defense

involved no exculpatory story with which his post-Miranda silence was compared.

See United States v. Tenorio, 69 F.3d 1103, 1106 (11th Cir. 1995) (finding error

was not harmless where prosecutor’s theory that the defendant’s exculpatory story

was inconsistent with his post-arrest silence was “the touchstone of the

government’s case-in-chief, its cross-examination of the defendant, and its closing


                                          6
argument during this trial of short duration”). While a curative instruction was

neither requested nor given, the court instructed the jury at the start of the trial not

to consider counsel’s questions as evidence and that, if an objection was sustained

and no answer was given, not to consider counsel’s question as evidence. In

addition, the court’s general jury instructions highlighted the defendant’s right to

be silent and not testify.

      In contrast to any minute potential for real prejudice to Miller as a result of

the questions, the government’s evidence of guilt was strong. Specifically, the

government established that, on two separate occasions, Miller was driving alone

in a car registered in his name and that, on each occasion, investigating officers

discovered firearms in the car. This evidence supported the jury’s inference that

Miller knew of the firearms and their verdict that he is guilty of the offense

charged. Under these circumstances, the prosecutor’s ill-advised questions, if

error, were harmless because they did not have any “substantial and injurious

effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623.

B.    Mens Rea Requirement Under 28 U.S.C. § 5861(d).

      Section 5861(d) makes it unlawful for any person to “possess a firearm

which is not registered to him in the National Firearms Registration and Transfer

Record.” The term ‘firearm” is defined as, among other things, “a shotgun having


                                            7
a barrel or barrels of less than 18 inches in length.” 26 U.S.C. § 5845(a)(1).

Although § 5861(d) contains no express mens rea requirement, the Supreme Court

has held that the government must prove beyond a reasonable doubt that the

defendant knew that the weapon he possessed had the characteristics that brought it

within the statutory definition of a firearm. Staples v. United States, 511 U.S. 600

(1994).3

       In this case, the characteristic which brought the shotgun within the statutory

definition of a firearm was the length of its barrel. Miller contends that there was

absolutely no evidence at trial which suggested that he knew that the shotgun he

possessed had a barrel of less that 18 inches. He also claims that the district court

failed to instruct the jury on this element of the offense. Finally, he argues that the

prosecutor repeatedly misstated the law and suggested that “mere” possession

satisfies the statute.

       Although the government offered no direct evidence that Miller knew that

the shotgun’s barrel was shorter than 18 inches, there was ample circumstantial

evidence from which the jury could reasonably infer such knowledge. See Staples,

511 U.S. at 615-16. First, the length of the barrel is a patently obvious



       3
        There is no requirement under the statute that the defendant knew that his possession
was unlawful, or that the firearm was unregistered. United States v. Freed, 401 U.S. 601 (1971).

                                               8
characteristic, readily apparent to anyone, including Miller, who observes the gun.

Id. at 615 n. 11 (“knowledge can be inferred from circumstantial evidence,

including any external indications signaling the nature of the weapon”). At trial,

Agent Pasqualotto testified that the shotgun’s barrel was fifteen-and-a-half inches

long. The shotgun was admitted as evidence and published to the jury. This

evidence permitted the jury to infer that Miller knew the barrel’s length was under

18 inches. See, e.g., United States v. Rith, 164 F.3d 1323, 1337 (10th Cir. 1999)

(jury could infer that defendant knew shotgun’s barrel length where the barrel was

observably shorter than 18 inches); United States v. Moore, 97 F.3d 561, 564 (D.C.

Cir. 1996) (“[t]he jury could also have inferred that appellant knew – by observing

the 13 1/16 inch weapon – that the rifle was shorter than sixteen inches”). The

evidence of the required mens rea was sufficient.

      Miller’s claim that the jury instruction on the mens rea requirement tainted

his conviction is also without merit. During the jury charge, the district court read

Count Five of the indictment, which charged Miller with “knowingly” possessing

an unregistered shotgun with a barrel length of 15-and-a-half inches. The district

court instructed the jury that:

            The Defendant can be found guilty of the offense charged in
      Count Five only if the Government proves each of the following
      elements beyond a reasonable doubt: First, that the Defendant
      knowingly possessed a firearm having a barrel or barrels of less than

                                          9
       18 inches in length; and second, that the firearm was not registered to
       the Defendant in the National Firearms Registration and Transfer
       Record.
              The Government must prove beyond a reasonable doubt that the
       firearm which the Defendant possessed was not registered in his name
       with the National Firearms Registration and Transfer Record.
       However, it is not necessary for the Government to prove that the
       Defendant knew that the firearm he possessed was not registered to
       him with the National Firearms Registration and Transfer Records,
       nor is it necessary for the Government to prove that the Defendant
       knew that the law required him to register the firearm.

       Since Miller did not object to this instruction at trial, we review it only for

plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 730-

32 (1993). Under this standard, an appellate court has the discretion to notice a

forfeited error only if the error was both plain and affected the defendant’s

substantial rights. Rule 52(b); Olano, 507 U.S. at 732. The appellate court should

exercise its discretion to correct the error only if it seriously affected the fairness,

integrity or public reputation of a judicial proceeding. United States v. Young, 470

U.S. 1, 15 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).

       In this case, although the instruction arguably was error, see Rogers v.

United States, 94 F.3d 1519, 1522-23 (11th Cir. 1996),4 we conclude that it was

       4
        In Rogers, the jury was instructed that they must find that “the Defendant knowingly
possessed the item as charged [and] that such item was a ‘firearm’ as defined above.” 94 F.3d at
1522. We held that this instruction was inadequate to “inform the jury that the Government was
obligated to establish [Rogers] knew the characteristics of the weapons at issue that subjected
them to the Act’s regulatory scheme,” but that the error was harmless in that case. 94 F.3d at
1523. After accepting certiorari to determine whether such error can be harmless, a plurality of

                                               10
not plain error. Although the instruction may have been ambiguous as to what the

jury must find that Miller knew,5 there is no reasonable doubt that the jury did find,

or would have found had they been more specifically instructed, that Miller knew

the shotgun had a sawed-off barrel. First, the jury was instructed that they must

find that the barrel of the shotgun was less than 18 inches long. Second, this

characteristic of the firearm was, as we noted above, readily apparent to all,

including Miller.6 The jury, then, necessarily found that Miller knew the shotgun’s

barrel was less than 18 inches long. Where the jury has found certain other

predicate facts which are so closely related to the omitted element that no rational

jury could find those facts without also finding the element, a failure to instruct on


the Supreme Court reversed our decision, holding that the instruction was adequate under
Staples. Rogers v. United States, 522 U.S. 252, 256-57 (1998)(certiorari dismissed as
improvidently granted). Nevertheless, we remain bound by the panel’s decision that the jury
instruction did not adequately instruct the jury on an element of the offense. See Foster v. Bd of
School Comm’rs, 872 F.2d 1563, 1569-70 n.8 (11th Cir. 1989) (plurality opinion from Supreme
Court not binding; prior panel decision is binding precedent). But see United States v. Hall, 171
F.3d 1133, 1151 (8th Cir. 1999) (approving instruction which requires jury to find the defendant
knew that he possessed a firearm and that the firearm had the characteristics which bring it
within the statutory prohibition).
       5
       See Justice Kennedy’s dissent in the Supreme Court’s review of our decision in Rogers.
522 U.S. at 260.
       6
          There is some authority for the proposition that the government need not prove and the
court need not instruct that the defendant knew the characteristic of the firearm which brought it
within the statutory proscription where that characteristic is so readily apparent that the weapon
itself is “quasi-suspect.” United States v. Barr, 32 F.3d 1320, 1323,24 (8th Cir. 1994. In
Staples, the Supreme Court held that where the characteristics which require the firearm to be
registered are not open and obvious the government must prove that the defendant knew that the
firearm he possessed had those characteristics. 511 U.S. at 611-12.

                                                11
that element is not plain error. Rogers, 94 F.3d at 1526.7 See also United States v.

Leonard, 138 F.3d 906, 910-11 (11th Cir. 1998) (error harmless if a properly

instructed jury would have reached the same result).

       Reviewing the challenged instruction in the context of the totality of the

instructions and of the trial itself, there is no doubt that the jury made the required

finding, and that any error was, therefore, not plain. See United States v. Miller, 22

F.3d 1075, 1079 (11th Cir. 1994) (challenged instruction must be considered in the

context of the totality of the jury charge). When considered in the totality of the

charge as a whole and the evidence presented against Miller, the instruction was

not so erroneous that it affected the fairness, integrity, or public reputation of the

trial. See United States v. Duncan, 855 F.2d 1528, 1532 (11th Cir. 1988). On the

contrary, to reverse the jury’s verdict under the circumstances of this case would

itself “bestir[ ] the public to ridicule” the judicial process. United States v. Swatzie,

228 F.3d 1278, 1284 (11th Cir. 2000) (quoting Johnson v. United States, 520 U.S.

461, 470 (1997)).8

       7
        Although Rogers was a “harmless error” case, plain error analysis is the same kind of
inquiry as harmless error analysis, with one important difference: “it is the defendant rather than
the Government who bears the burden of persuasion with respect to prejudice.” Olano, 507 U.S.
at 734-35; United States v. Fern, 155 F.3d 1318, 1327 (11th Cir. 1998).
       8
        Nor do we find any error in the prosecutor’s representations of the law. In the example
quoted by Miller, which occurred during the opening statement, the prosecutor stated that “mere
possession of a sawed-off shotgun is a crime.” However, when read in context, it is clear that
the prosecutor began this statement by explaining that § 5861(d) prohibits a person from

                                                12
                                                 III.

         Finally, Miller argues that the district court abused its discretion by denying

his motions to sever the unregistered firearm possession count from the felon-in-

possession counts. Miller contends that the introduction of his prior felony

conviction was prejudicial and invited the jury to consider his status as a felon

when determining his guilt or innocence on the unregistered firearm possession

count.



possessing certain kinds of firearms, including sawed-off shotguns, unless they are registered, as
follows:

                 The fifth count, Count Five, is a violation of 26, United States Code,
         5861(d). It’s kind if a mouthful, but what that means is there are certain firearms
         that by their very nature people cannot possess unless they are registered and you
         send in a form and you register and you’re allowed to possess the firearms. That
         would be a machine gun, hand grenades, bombs, and I [sic] the evidence will
         show, sawed-off shotguns, because by the very nature of a sawed-off shotgun, it
         has no sporting purpose, and thereby the mere possession of a sawed-off shotgun
         is a crime.

        In addition, during closing argument, the prosecutor twice referred to the shotgun as an
“illegal weapon,” but also argued that the evidence showed that the shotgun was not registered
by Miller. Finally, Miller cites an instance in which Miller claims the court instructed the jury
that the shotgun was an illegal weapon by virtue of its barrel length, as follows:

         All right. Ladies and gentlemen, insofar as the question as to whether or not this
         gun is an illegal weapon, the fact that it is 15-and-a-half inches is a violation of
         the law. But the fact that whether or not this Defendant knew it was registered to
         him or was not registered, any testimony on that should be disregarded by you.

This statement occurred following a hearsay objection by defense counsel to the testimony of
ATF special agent Pasqualotto that the shotgun was not registered in Miller’s name. The court
sustained this objection and permitted the government to introduce the ATF form certifying that
the shotgun was not registered to Miller.

                                                  13
      Miller concedes, however, that this prejudice was mitigated by the fact that

at trial he stipulated to his conviction. Miller’s general allegation of some

prejudice is insufficient to meet the defendant’s heavy burden of demonstrating

that he suffered “specific and compelling prejudice as a result of the denial of

severance.” See United States v. Simon, 839 F.2d 1461, 1472 (11th Cir. 1988).

                                          IV.

      The prosecutor’s questions, even if error, were harmless error. The evidence

that Miller knew he possessed a firearm with a barrel less than 18 inches long was

sufficient and the court’s instruction on this element, if error, was not plain.

Finding no other error in the trial, we AFFIRM Miller’s convictions.




                                           14
